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LAWS OF BUSINESS 

•f 

FOR 




OF THE UNION 


AND THE 

DOMINION OF CANADA. 

« 

WITH 


FORMS AND DIRECTIONS FOR ALL TRANSACTIONS, 

AND 


ABSTRACTS OF THE LAWS OF ALL THE STATES AND 
TERRITORIES ON VARIOUS TOPICS. 



THEOPHILUS PARSONS, LL.D., 

n 

LATE PROFESSOR OF LAW IN HARVARD UNIVERSITY, CAMBRIDGE, AND AUTHOR OF TREATISES ON THE 
LAW OF CONTRACTS, ON MERCANTILE LAW, ON THE LAW OF PARTNERSHIP, ON THE LAWS 
OF PROMISSORY NOTES AND BILLS OF EXCHANGE, ON THE LAW OF INSURANCE, 

AND ON THE LAW OF SHIPPING AND ADMIRALTY. 


NEW REVISED EDITION. 


HARTFORD: 

S. S. SCRANTON 

1886. 




Tt 


& CO, 






Copyright, 1886, by 
S. S. SCRANTON & CO. 




) 


CONTENTS. 


CHAPTER I. 

THE PURPOSE AND USE OF THIS BOOK. 

PAGE. 

To fully and clearly explain the Laws of Business, .... 23 


CHAPTER II. 

BUSINESS LAW IN GENERAL. 

The Principles on which it rests,.. • . 27 


CHAPTER III. 

INFANTS OR MINORS. 

Form 1.—Promise in Writing,.• • • 34 


CHAPTER IV. 

APPRENTICES. 

Forms. 

Form 2.—A General Indenture of Apprenticeship as sometimes used 

in New England,.35 

3.—Shorter Indenture of Apprenticeship,.36 


CHAPTER V. 

MARRIED WOMEN. 

Abstract of the Law of Husband and Wife in the Several States, 

( 3 ) 


40 



4 


CONTENT'S. 


Forms. 


PAGE. 


Form 4.—Indenture to put in Trust the Property of an Unmarried 

Woman.60 

5.—Another Form of Indenture in Trust, for Property of Un¬ 
married Women,.. . 64 


CHAPTER VI. 

AGREEMENT AND ASSENT. 


Section I.—The Legal Meaning of Agreement, . . • . 67 

II.—What is an Assent,.69 

III. —Offers made on Time,.7° 

IV. —A Bargain by Correspondence,.7 1 

V.—What Evidence may be received in Reference to a 

Written Contract,.72 

VI.—Custom or Usage,.74 

Forms. 

Form 6.—General Agreement, sufficient for many Purposes, . . 77 

7. —General Agreement, as used in the Western States, . . 77 

8. —General Contract for Mechanic’s Work, .... 78 

9. —Agreement for Purchase and Sale of Land, in Use in the 

Middle States,.79 


10. —Agreement for Sale of Land, in Use in the Western States, 79 

11. —Agreement for Warranty Deed, used in the Western States, 82 

12. —Contract to convey Real Estate, in use in the Middle States, 82 

13. —Agreement for the Purchase of an Estate, in use in New 

England,.. .84 

14. —Agreement for the Sale of an Estate by Private Contract, 87 

15. —Agreement to be signed by an Auctioneer, after a Sale by 

Auction, .......... 87 

16. —Agreement to be signed by the Purchaser, after a Sale by 

Auction,.88 

17. —Agreement to make an Assignment of a Lease, ... 88 

18. —Agreement for making a Quantity of Manufactured Articles, 88 

19. —Agreement between a Trader and a Bookkeeper,... 89 

20. —Agreement for Damages in laying out or altering Road, . 90 

21. —Agreement between a Person who is retiring from the 

Active Part of a Business, and Another who is to con¬ 
duct the same for their Mutual Benefit, . 


90 







CONTENTS. ■ 


5 


Form 22.—Brief Building Contract, 

23.—Full and Minute Building Contract, 


PAGE. 

. 92 

• 93 


CHAPTER VII. 

CONSIDERATION. 

Section I.—The need of a Consideration, 

II.—What is a sufficient Consideration, 

III. —Illegal Consideration, . 

IV. —Impossible Consideration, . 

V. —Failure of Consideration, 

CHAPTER VIII. 

BONDS. 

« 

Essentials of a Bond,. . . 104 

“ Condition ” of the Bond,.105 

Forms. 

Form 25.—Simple Bond, without Condition,.106 

26.— Bond for Payment of Money, with a Condition to that 
Effect, with Power of Attorney to confess Judgment 


annexed,. .106 

27. —Bond for Conveyance of a Parcel of Land, .... 107 

28. —Bond for a Deed of Land, with Acknowledgment before 

Notary Public,.108 

29. —Bond in Another Form, for Conveyance of Land, with 

Acknowledgment,.109 

30. —Bond to Corporation for Payment of Money due for Con¬ 

tribution to Capital Stock, with Power of Attorney to 
confess Judgment,. no 


97 

98 

101 

101 

102 


CHAPTER IX. 

ASSIGNMENTS. 


Instruments to which the term is particularly given, 


112 










6 


. CONTENTS. 


Forms. 

Form 31.—Brief Form of an Assignment to be indorsed on a note, or 
any Similar Promise or Agreement,. 

32. —General Assignment, with Power of Attorney, . 

33. —Assignment of a Bond,. 

34. —Assignment of a Bond, with Power of Attorney, and a 

Covenant,. 

35. —Assignment of a Judgment, in the Form of an Indenture, 

36. —Assignment of Wages, with Power of Attorney, 


CHAPTER X. 

SALES OF PERSONAL PROPERTY. 

Section I.—What constitutes a Sale, .... 

II.—Delivery and its Incidents, .... 

III. —Contracts Void for Illegality or Fraud, 

IV. —Sales with Warranty,. h 


Forms. 

Form 37.—Bill of Sale of Personal Property,. 

38.—Bill of Sale of Personal Property, with a Condition to 
make it a Mortgage with Power of Sale, . 

Section V.—The Sale of One’s Business,. 


CHAPTER XI. 

STOPPAGE IN TRANSITU. 

Derivation and Meaning of the Term, .... 
Rights of Parties in Goods in Transitu, 

CHAPTER XII. 

GUARANTY. 

Forms. 

Form 39.—Guaranty to be indorsed on Note, . . 

40.—Guaranty of a Note on Separate Paper, 


PAGE. 

113 

113 

114 

114 

115 
”5 


116 
121 
126 
128 


Hi 

132 

133 


134 

134 


140 

140 




CONTENTS. 


7 


PAGE. 

Form 41.—Guaranty in Another way,. 

42.—Letter of Guaranty,.^ 

43—Guaranty with Collaterals, authorizing Sale, . . .141 

44.—Guaranty with Collaterals, promising Additional Security, or 
authorizing Sale,.. 

CHAPTER XIII. 

THE STATUTE OF FRAUDS. 

Section I.—Its Purpose and General Provisions, .... 142 

II.—Promise to pay the Debt of Another, .... 143 

HI-—Agreement not to be performed within a year, . . . 145 

IV.—The Form and Subject-Matter of Agreement, . . . 146 

CHAPTER XIV. 

PAYMENT AND TENDER. 

Section I.—How Payment may be made,.147 

II.—Appropriation of Payment,.149 

CHAPTER XV. 

RECEIPTS AND RELEASES. 

Remarks on the Nature of Receipts, and Degrees of Fullness thereof, i $ 0 

Forms. 

Form 45.—Receipt for Money,.150 

46. —Another Form of Receipt for Money, . . . 150 

47. —Receipt for Papers or other Articles,. . , . .150 

48. —General Release,.151 

49. —Mutual General Release by Indenture, . . . .152 

50. —Release from Creditors to a Debtor, under a Composition, 152 

51. —Release of all Legacies,.152 

52. —Release of a Bond, it being lost v .153 

53. —Release of a Judgment,.154 

54. —Release of a Condition,.155 

55. —Release of a Covenant contained in an Indenture of Lease, 155 

56. —Release in Extinguishment of a Power, . . . .156 







8 


CONTENTS. 


PAGE. 

Form 47.—Release from a Lessor to a Lessee (upon his surrendering 

his Lease; from the Covenants therein, . . . .156 

58. —General Release of Dower,. 157 

59. —Release of Dower to the Heir,.157 

60. —Release of Dower in Consideration of an Annuity given by 

Will,.158 

61. —Release of Dower when the Husband of the Widow joins in 

the Deed,.*58 

62. —Release of a Trust,. 1 59 

63. —Release of Right to Lands,. 

64. —Release between two Traders in Settling Accounts, . .160 


CHAPTER XVI. 

NOTES OF HAND AND BILLS OF EXCHANGE, DRAFTS 
AND CHECKS. 

Section I.—The Purpose of, and the Parties to, such Papers, . . 161 

Norms. 

Form 65.—Common Form of a Bill of Exchange, . . . *162 

66.—Common Form of a Promissory Note, .... 163 

Section II.—What is Essential to a Negotiable Note or Bill, . . 168 


Forms. 

Form 67.—Form of a Note given for a Chattel sold, with a Condition 

preserving the Ownership of the Seller, . . . .170 


Section III.— Consideration of Negotiable Paper, 

IV. —Rights and Duties of the Maker, .... 

V. —Rights and Duties of the Holder of Negotiable Paper, 

VI.—Rights and Duties of the Indorser, .... 

VII.—Rights and Duties of the Acceptor, 

VIII.—Acceptance or Payment for Honor, . 


176 

179 

179 

191 

195 

196 


Forms. 

Form 68.—Judgment Note, with Waiver, .... 

69. —Judgment Note, with Waiver and Power of Attorney, 

70. —Notarial Protest and Notice,. 


198 

198 

200 


Abstract of Days of Grace and Holidays in all the States, . . .201 


CONTENTS . 


9 


CHAPTER XVII. 

AGENCY. 


Section I.—Agency in General,. 

II.—How Authority may be given to an Agent, 

III. —Extent and Duration of Authority, . 

IV. —Execution of Authority,. 

V.—Liability of an Agent,. 

VI.—Rights of Action growing out of Agency, . 

VII.—How a Principal is affected by the Acts of his Agent, 

VIII.—Mutual Rights and Duties of Principal and Agent, . 

IX.—Factors and Brokers, . . . . 


Forms. 


Form 71.—Power of Attorney,. 

72. —Power of Substitution,. 

73. —Power of Attorney in a Shorter Form, .... 

74. —Full Power of Attorney to Demand and Recover Debts, . 

75. —Power of Attorney to Sell and Deliver Chattels, 

76. —Power of Attorney given by Seller to Buyer, 

77. —Power of Attorney to sell Shares of Stock, with Appoint¬ 

ment by Attorney of Substitute,. 

78. —Power of Attorney to subscribe for Stock, .... 

79. —Proxy or Power of Attorney to Vote,. 

80. —Proxy Revoking all Previous Proxies, .... 

81. —Proxy with Affidavit of Ownership, in use in New York, . 

82. —Power to receive Dividend, . . .... 


CHAPTER XVIII. 

PARTNERSHIP. 

Sermon I.—What a Partnership is,. 

II.—How a Partnership may be Formed,. 

III. —How a Partnership may be Dissolved, . . . . 

IV. —Property of the Partnership,. 

V. —Authority of each Partner, and the Joint Liability of the 

Partnership,. 

VI. — Remedies of Partners against each other, 

VII.—Right of the Firm against Third Parties, 


PAGE. 

207 

209 

212 

214 

215 

215 

216 

217 
220 


223 

224 

224 

225 

226 

226 

226 

227 

227 

227 

227 

228 


228 

229 

231 

233 

234 

239 

240 








10 


CONTENTS. 


PAGE. 

Section VIII.—Rights of Creditors in Respect to Funds, . . • 2 4i 

IX.—Effects of Dissolution,. 2 43 

X.—Limited Partnership,. • 2 44 

Forms. 

Form 83.—Articles of Copartnership between two Tradesmen, . . 2 45 

84—Short Form of Articles of Copartnership, .... 2 47 

85.—Certificate of a Limited Partnership, with Acknowledgment 

and Oath,. 2 49 

CHAPTER XIX. 

ARBITRATION. 

Section I.—The Submission and Award, ...... 250 

II.—Revocation of a Submission to Arbitrators, . . . 254 

Forms. 

Form 86.—Simple Agreement to Refer,.256 

87. —Arbitration Bond. One or more Arbitrators, . . . 256 

88. —Award of Arbitrators,.257 


CHAPTER XX. 


THE CARRIAGE OF GOODS AND PASSENGERS. 

Section I.—A Private Carrier,.257 

II.—The Common Carrier, . ..... 258 

III. —Obligation of Common Carrier to receive and carry Goods 

and Passengers,.261 

IV. —The Lien of the Common Carrier,.266 

V.—Liability of the Common Carrier,.266 

VI.—The Carrier of Passengers,.268 

VII.—Notice by the Carrier Respecting his Liability, . . . 269 

VIII.—The Carrier’s Liability for Goods carried by Passengers, . 271 


Forms. 

Form 89.—Steam Packet Company’s Receipt,.274 

90.—Express Company’s Receipt,.. 274 





CONTENTS 


II 


CHAPTER XXL 

PAGK. 

HOTEL-KEEPERS, INN-KEEPERS, AND BOARDING-HOUSE- 

KEEPERS. 

The Rights, Duties, and Liabilities of, and the distinction between, 

Hotel-keepers and Boarding-house-keepers,.276 

CHAPTER XXII. 

LIMITATIONS. 

Section I.—Statute of Limitations, ....... 278 

II. —Construction of the Statute,.279 

III. —The New Promise,.280 

IV. —Part Payment,.281 

V.— Some Statutory Exceptions,.282 

VI.—When the Period of Limitation begins, .... 283 

VII.—The Statute does not affect Collateral Security, . . 284 

Abstract of the Statutes of Limitation of all the States, . . . 284 

CHAPTER XXIII. 

INTEREST AND USURY. 

Section I.—What Interest is, and When it is Due, .... 3 00 

II.—Charge for Risk or for Service,.3°5 

III. —Sale of Notes,.3°6 

IV. —Compound Interest,.3°7 

Abstract of the Usury Laws of the States, . . . . . . 3°8 

CHAPTER XXIV. 

THE LAW OF PLACE. 

Section I.—What is meant by the Law of Place,.3 12 

II.—General Principles of the Law of Place, . . . . 3 12 

HI.—Place of the Contract, . . . . , , . 3*4 

IV.—Domicil,.* • 3 J 5 









12 


CONTENTS. 


CHAPTER XXV. 


THE LAW OF SHIPPING. 

PAGE. 

Section I.—Ownership and Transfer of Ships,.31S 

II.—Transfer of Property in a Ship,.321 

III. —Part-Owners,.3 2 3 

IV. —Liability of Mortgagees,.325 

V.—Contract of Bottomry,.325 

VI.—Employment of a Ship by the Owner, .... 327 

VII.—Charter Parties,.334 

VIII.—General Average,.33^ 

IX.—Salvage,.34 2 

X.—Navigation of the Ship,.34^ 

XI.—Seamen,.35° 

XII.—Pilots,.353 

XIII.—Material-Men, .354 

Forms .. 

Form 91.—Bill of Sale of Vessel,.355 

92. —Mortgage of a Vessel,.357 

93. —Charter Party,.359 

„ 94.—Bill of Lading,.360 

95. —Shipping Articles in Common Use,.361 

96. —Bottomry Bond,.364 

97. —Oath or Affirmation of Consignee or Agent, . . . 365 

98. —Custom-House Power of Attorney, No. 201, . . . 366 

99. —Maritime Protest, . . . . . . . . 367 

100.—Steamboat Warrant, as used in the Western States, . 369 


CHAPTER XXVI. 

MARINE INSURANCE. 


Section I.—How the Contract of Insurance is made, .... 369 

II.—Interest of the Insured,.372 

III. —Interest which may be insured,.374 

IV. —Prior Insurance,.377 

V.—Double Insurance and Re-insurance,.... . 378 

VI. —Memorandum,.379 

VII. —Express Warranties,.379 

VIII.—Implied Warranties,.381 
























CONTENTS. 


13 


PAGE. 

Section IX.—Representation and Concealment,.383 

X.—What things should be communicated, .... 384 

XI.—Premium,.385 

XII.—Description of the Property Insured, .... 386 

XIII. —Perils covered by the Policy,.387 

XIV. —Perils of the Sea,.388 

XV.—Collision,.389 

XVI.—Fire,.^.389 

XVII.—Piracy, Robbery, or Theft,.389 

' XVIII.—Barratry,.390 

XIX.—Capture, Arrest, and Detention, . 390 

XX.—General Clause,.391 

XXI.—Prohibited Trade,.391 

XXII.—Deviation,.392 

XXIII.—Termini of the Voyage, and of the Risk, . . . 394 

XXIV.—Total Loss and Abandonment,.396 

Form. 

Form 101.—Abandonment,.399 

Section XXV.—General Average,.402 

XXVI.—Partial Loss,.403 

CHAPTER XXVII. 

FIRE INSURANCE. 

Section I.—Usual Subject and Form of the Insurance, . . . 405 

II.—Construction of Policies against Fire, .... 408 

III. —Interest of the Insured,.414 

IV. —Double Insurance,.416 

V. —Warranty and Representation,.417 

VI.—Risk incurred by the Insured,.421 

VII.—Valuation,.422 

VIII.—Alienation,.423 

IX.—Notice and Proof,.424 

X.—Adjustment and Loss,.425 

Forms. 

Form 102.—Immediate Notice of Loss,.4 2 ^ 

103. —Notice, with Certificate of Magistrate, .... 4 2 7 

104. —Assignment of a Policy to be indorsed thereon, . . 428 

105. —Transfer and Assignment of Policy, .... 429 

















H 


CONTENTS ’. 


CHAPTER XXVIII. 


LIFE INSURANCE. 

PAGE. 

Section I.—Purpose and Method of Life Insurance, .... 43° 

II.—Premium,.43 1 

III. —Restrictions and Exceptions in Life Policies, . . . 43 2 

IV. —Interest of the Insured, ....... 434 

V.—Assignment of a Life Policy,.434 

VI.—Warranty, Representation, and Concealment, . . . 435 

VII.—Insurance against Accident, Disease, and Dishonesty of 

Servants,.439 


CHAPTER XXIX. 

DEEDS CONVEYING LAND. 

Section I.—What is Essential to such Deeds,.440 

II.—Usual Clauses in Deeds,.. 445 

Forms . 

Form 106.—Deed Poll of Warranty, in Common use in New England, 45 2 
107.—Deed of Gift by Indenture, without any Warranty whatever, 453 


108. —Deed of Bargain and Sale, without any Warranty, , . 454 

109. —Quit-Claim Deed, without any Warranty, . . . .455 

no.—Deed Poll of Release and Conveyance; short Form, . 45 ^ 

hi.—D eed, with Special Warranty against the Grantor only, . 457 

112.—Quit-Claim Deed (long Form), Homestead Waiver, . . 45& 


113. —Deed, with Covenant against Grantor, without Release of 

Homestead or Dower,. 459 

114. —Separate Relinquishment of Homestead and Dower in 


Land sold under Execution,.461 

115. —Full Warranty Deed’, by Indenture, without Release of 

Homestead or Dower,.462 

116. —Warranty Deed (short Form), with release of Homestead 

and Dower,.464 

117. —Warranty Deed, with Covenant against Nuisances, without 

Release of Homestead or Dower, .... 465 

118-142.—Forms of Deeds in use in various States, . . 467—500 

143.—Bond for a Deed,.501 


144.—Contract for Sale of Land, with Penal Obligation, . . 501 







CONTENTS. 


15 


Form 145.—Power of Attorney to sell Lands,. 

146.—Trust Deed for the Benefit of a Wife, or some other 


Person,.504 

147. —Trust Deed to secure Payment of a Note without Re¬ 

lease of Homestead or Dower,.505 

148. —Deed of Trust to secure a Debt (fuller Form), and with 

Release of Dower,.507 

149. —Trust Deed to secure a Note (shorter Form), but with 

Warranty, and Release of Homestead and Dower, . . 510 

150. —Deed from Trustees,.512 

151. —Deed of Master in Chancery,.513 

152. —Sheriff’s Deed on Execution, in use in the Western 

States,.514 

153. —Sheriff’s Deed, in use in New England, .... 515 

154. —Sheriff’s Tax Deed, in use in the Western States, . . 517 

155. —Deed of Executor, in use in the Eastern States, . . 518 

156. —Deed of Executor, in use in the Middle States, . . 519 

158.—Deed of Administrator of Intestate,.521 

160. —Deed of Referee on Foreclosure, in use in the Middle 

States,.524 

161. —Deed of Collector of Taxes,.526 

162. — Deed of Assignee, in use in the Western States, . . 527 

163. —Acknowledgment of Grantor and Wife identified before 

Commissioner for another State,.529 

164-168.—Deeds in use in Canada,.530-536 

Abstract of the Laws of all the States Relating to Deeds and their 

Requirements,.53& 


CHAPTER XXX. 

MORTGAGES OF LAND. 

Purpose of a Mortgage,.542 

Rights of Mortgagor and Mortgagee,.543 

Forms. 

Eorm 169.—Promissory Note, to be secured by Mortgage, . . .546 

170. —Bond, to be secured by a Mortgage, .... 546 

171. —Mortgage, without Power of Sale and without Warranty, 

but with Release of Homestead and Dower, . . . 547 







16 


CONTENTS. 


Form 172.—Mortgage, with Power of Sale, to secure a Bond, without 

Release of Dower, . 54 § 

173. —Mortgage to secure a Debt, with Power of Sale—short 

Form,. 55 ° 

174. —Mortgage to secure a Debt (fuller Form), with Power of 

Sale, .... , 55 i 

175. —Deed Poll of Mortgage, with Power to Sell, and Insurance 

Clause, and Release of Homestead and Dower, . . 55 2 

176. —Mortgage by Indenture, with Power of Sale, and Interest 

and Insurance Clause, to secure a Bond, . . . 554 

177. —Mortgage to Executors, with Power of Sale, 0 . .557 

178. —Mortgage of a Lease,. 559 

179. —Mortgagee’s Deed, under a Power of Sale, . . . 5 ^ T 

180-199.—Mortgage Deeds in use in several States, . „ 562-589 

200. —Assignment of Mortgage—short Form, . . . . 590 

201. —Assignment of Mortgage, with Power of Attorney, . . 590 

202. —Assignment of Mortgage by a Corporation, . . . 591 

203. —Discharge of Mortgage—short Form, .... 592 

204. —Release and Quitclaim of Mortgage, as used in the West¬ 

ern States,.593 

205. —Discharge of Mortgage, as used in the Middle States, . 593 

206. —Discharge and Satisfaction of Mortgage by a Corpo¬ 

ration, .594 

207. —Release of a part of the Mortgaged Premises, . . 594 

208. —Deed Extending a Mortgage,.596 

209,210,211.—Mortgage Deeds in use in Canada, . . 597-600 


CHAPTER XXXI. 


LEASES. 

Definition of the Term, „ 

Rights and Obligations of the Parties, . 

Fixtures, . 

Digest of Leases,. 


Forms. 

Form 212.—Short Form of a Lease,. 

213. —Fuller Form, with a Provision for Abatement of Rent, 

214. —Short Form of Lease, in use in the Western States, . 

215. —Lease of City Property, in use in Chicago, 

216. —Lease, with Provisions for Taxes and Assessments, 


604 

605 

608 

609 


610 

610 

612 

613 

615 







CONTENTS . 


17 


PAGE. 

Forn> 217.—Lease, with Covenants about Water Rates, and Injury by 

Fire, in use in New York,.617 

218. —Lease by Grant, in use in the Western States, . . .619 

219. —Lease by Certificate, with Surety,.620 

220. —Lease of City Property, in use in St. Louis, . . .621 

221. —What is called a Country Lease, in use in the Western 

States,.622 

222. —A Ground Lease,.624 

223. —Assignment of Lease, and Ground Rent, . 627 

224. —Lease containing Chattel Mortgage Covenants to secure 

Rent,.629 

225. —A Building Lease,.632 

226. —A Mining Lease,.633 

227. —Lease of Land supposed to contain Oil, Salt, or other 

Minerals,.634 

228. —Assignment of a Lease,.636 

229. —Landlord’s Notice to quit for Non-Payment of Rent— 

short Form,.636 

230. —Landlord’s Notice to quit for Non-Payment of Rent— 

another Form,.637 

231. —Landlord’s Notice to pay Rent due, or quit, . . . 637 

232. —Landlord’s Notice to leave at End of Term, . . . 637 

233. —Landlord’s Notice to determine a Tenancy at Will, . . 638 

234. —Receipt for Rent, in use in New York, .... 638 

235-239.—Leases in use in Canada, .... 638-644 


CHAPTER XXXII. 

MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL 

PROPERTY. 

The Pledge of Personal Property,.647 

Forms. 

Form 240.—Mortgage of Personal Property,.649 

241. —Mortgage of Personal Property, with Warranty, . . 649 

242. —Mortgage of Personal Property, with Power of Sale, . 651 

243. —Mortgage of Personal Property, with Power of Sale— 

another Form,.652 

Abstract of the Laws of the States respecting Chattel Mortgages, . 653 


2 








i8 


CONTENTS. 


CHAPTER XXXIII. 

LAW OF PATENTS. 

PAGE. 

What may be Patented,.664 


Who is Entitled to a Patent, 664 

What will Prevent the Granting of a Patent,.665 

Mode of Proceeding to obtain a Patent,.665 

Forms. 

Form 244.—Form of Petition,.665 

245. —Specification to accompany a Petition, .... 667 

246. —Form of Oath,.668 

Drawings,.669 

Model,.670 

Completion of the Application,.670 

Examination,.. . 670 

Rejections,.671 

Withdrawals,.672 

Appeals,.672 

Form 247.—Appeal to the Examiner-in-chief, .... 673 

Interferences,.674 

Re-Issues, . . •. *675 

Form 248.—Petition,.677 

249.—Oath to be appended to Application for Re-issue, . 677 

Disclaimers,.678 

Form 250.—Disclaimer.5^3 

Extensions,.* 679 

Designs,.678 

Form 251.—Application for Patents of Designs, .... 680 

252.—Specifications for Designs,.680 

Form of Oath,.681 

Foreign Patents,.682 

Caveats,.682 

Form 254.—Form of a Caveat,.682 

Repayment of Money,. 683 

Assignments and Grants,.683 

Form 255.—Assignment of the Entire Interest in Letters-Patent 
before obtaining the same, and to be recorded pre¬ 
paratory thereto,.684 

























CONTENTS. 


19 


PAGE. 

Form 256.— Grant of a Partial Right in a Patent, .... 685 

Forms of License,.686 

The Office Fees, and how Payable,.687 

Taking and transmitting Testimony,.688 

Canada, Patent Law of,.688 

Trade-Marks,.689 

CHAPTER XXXIV. 

LAW OF COPYRIGHT. 

Revised Statutes of the United States relating to Copyright, Sections 

4948 to 4971,.696 

Copyright Law of the Dominion of Canada,.700 

Forms. 

Form 260.— Agreement between Author and Publisher — short Form, 700 

261. — Agreement between Author and Publisher — fuller Form, 701 

262. — Assignment of a Copyright,.702 

CHAPTER XXXV. 

MEANS PROVIDED FOR THE RECOVERY AND COLLECTION 

OF DEBTS. 

1. — Arrest and Imprisonment,.703 

2. — Trustee Process,.703 

3. — The Homestead,. 704 

Abstract of Laws relating to the Collection of Debts, . . . .705 

CHAPTER XXXVI. 

LIENS OF MECHANICS AND MATERIAL-MEN FOR THEIR 
WAGES AND MATERIALS. 

What is a Lien,.761 

Forms. 

Form 263.— Notice under Mechanic’s Lien Law,.762 

264. — Bill of Particulars of Mechanic’s Claim, .... 763 

265. — Release and Discharge of a Mechanic’s Lien, . . . 763 

266. —Release and Discharge of a Mechanic’s Lien, another 

Form,.764. 

Abstract of the Laws of all the States relating to Mechanics’ Liens, . 764 














20 


CONTENTS. 


CHAPTER XXXVII. 

THE DISPOSAL OF PROPERTY BY WILL. 

PAGE. 

Section I.— Wills,.776 

II.— Codicils,. 779 

III.— Revocation of Wills,.780 

Form 267.— A Will,.781 

268.— Copy of a fuller form of a Will,.782 

CHAPTER XXXVIII. 

EXECUTORS AND ADMINISTRATORS. 

Powers and Duties of Executors and Administrators, .... 790 

CHAPTER XXXIX. 

GUARDIANS. 

The Rights and Duties, Powers and Liabilities, of Guardians, . . 794 

CHAPTER XL. 

CONSTRUCTION AND INTERPRETATION OF CONTRACTS. 

Section I.— General Purpose and Principles of Construction, . . 796 

II.— Some of the General Rules of Construction, . . . 797 

III. — On Presumptions of Law,.801 

IV. — Of the Effect of Custom and Usage,.802 

V. — On the Admissibility of Extrinsic Evidence, . . . 805 

CHAPTER XLI. 

LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 

Section I.— His Title to his Farm,.809 

Subsection 1.— Possession,.809 

2. — Inheritance,.810 

3. —Purchase, . ..810 

4. — Sales of Land at Auction,.811 














CONTENTS. 


21 


PAGE. 

Section II.— What one Takes by the Deed of his Farm, . . .812 

Subsection 1.— Boundaries and Descriptions,.812 

2. — Contents, ..813 

3. —Fixtures, 814 

4. — Manure, ..815 

5. — Rocks, Stones, and Soil,.815 

6. — Adjoining Roads,.816 

7 -—Trees,. \ . .816 

Section III.— Trespassing on the Farm,.817 

Subsection 1.— Who is a Trespasser,.817 

2.— Of the Right of a Farmer to Order a Trespasser off 

from his Land, 818 

Section IV.— Farm Ways,.818 

V.— Water Rights,.819 

VI.— Fire,.819 

VII.— Game Animals,.821 

VIII.— Domestic Animals,.822 

IX.— Sale with Warranty of Animals, of Seeds, and of Fer¬ 
tilizers, .823 

Subsection 1.— Of Animals,.823 

2. — Of Seeds,.824 

3. — Of Fertilizers,.825 

Section X.— Hiring of Help,.825 

Subsection 1.— Rights and Duties of Help,.826 

2.— Liability of the Farmer for the Wrong-doing of his 

Help,.827 

Section XI.— Hiring of a Farm,.828 

Subsection 1.— Hiring by Lease,.829 

2. — Renewal of Lease,.829 

3. — Remedy for non-Payment of Rent, .... 829 

4. — Tenant’s Right to Vacate the Premises and Give up 

the Farm,.830 

5. — Apportionment of Rent,.830 

6. — Cultivation of the Farm,.831 

Form.— A Form of a Lease of a Farm,.832 

7. — Hiring on Shares,.833 * 

./ 

} 












NOTE. 


In preparing this edition of my Laws of Business, I have spared no 
effort to make the book a safe guide in every business question which is 
likely to arise in any State of the Union. I have made large additions to 
the former edition, especially of Abstracts of the Laws of all the States, 
in relation to such matters as Deeds of all kinds, Chattel Mortgages, Leases, 
Wills, Mechanics’ Liens, Days of Grace and Holidays, Statutes of Limita¬ 
tions, Actions, Recovery and Collection of Debts, Attachment, Arrest, 
Garnishment, or Trustee Process, Judgment, Exemptions, Stay Lavste, 
Homestead Rights, etc., etc., and a new chapter on the legal Rights and 
Obligations of Farmers ; Help, and their rights and duties; Trespassers, 
Adjoining Roads, Rivers and Ponds, Fences, Farmways, Repairs, Fixtures, 
and many other topics. I have greatly multiplied the Forms. Some 
of these Forms will be found brief and simple; others of them, especially 
those in relation to real estate, are full and minute. No one but a lawyer 
knows how necessary it is to use the technical, customary, and established 
language of Forms, every phrase of which has passed through repeated liti¬ 
gation, and has thus acquired a certain meaning. Much in such Forms 
will seem, to those ignorant of law, to be wordy and full of repetition; but, 
if the Forms are made apparently more simple by omissions and abbrevia¬ 
tions, they may be good, and they may not; and whether they are or not 
cannot be known except by litigation. And he must be a bold lawyer who 
would undertake to prefer Forms of his own make to those which the Courts 
and common use have sanctioned. Wherever I could, I have given Forms 
which were thus sanctioned, because the very object of this book is to enable 
persons who use it to conduct their business affairs with ease', safety, and 
certainty. 

I think such a book possible, and I venture to hope that I have made 
such a book. I know only that whatever labor and care could do to make 
^the book useful and safe, has been done. In nothing that I have published 
have I labored more strenuously to make my work satisfy the just require¬ 
ments of those to whom it is offered. In this edition I have brought the 
law down to the present time, have revised the whole work, and, as I have 
already said, have made large additions which will, I hope, increase Us use¬ 
fulness and value. 


THEOPHILUS PARSONS. 



THE LAWS OF BUSINESS. 


CHAPTER I. 

THE PURPOSE AND USE OF THIS BOOK. 

The title of this work indicates, to some extent, its purpose 
and character; but, as they are in certain respects peculiar, it 
is thought that some remarks respecting them may make the 
volume more useful. Many years ago, after more than twenty- 
five years of practice at the bar, I accepted the office of Dane 
Professor in the Law School of Harvard University. I employed 
whatever leisure the duties of that office left me, in preparing a 
series of text-books on Commercial Law. I have published 
many volumes; and the manner in which they have been re¬ 
ceived by my professional brethren, calls for my most grateful 
acknowledgments. One of those works was entitled “The Ele¬ 
ments of Mercantile Law,” and was intended as a general 
epitome of Commercial Law. I began it mainly for the use of 
lawyers, but at the same time hoping that it might be so 
written as to be useful to others, who were not lawyers. 
Before’ I had made much progress in it, the hope that one book 
could answer these two purposes faded away; and I finally 
made that work exclusively for lawyers. But the circum¬ 
stance that many persons who were not lawyers, and did not 
intend to be, have bought my works,—the remarks that have 
reached me in relation to them, and particularly in reference to 
that above mentioned, and many other kindred facts,—have given 
additional strength to a belief that led me to prepare this vol¬ 
ume, for wide and general use. 

That belief is, that there is a strong and growing disposition, 

(23) 



PURPOSE AND USE OF THIS BOOK. 


24 

among the men of business of this country, to understand the 
laws of business. This disposition, and the actual diffusion of 
this knowledge, have both greatly increased of late years, and I 
believe could not have been arrested; for this progress is one 
element of advancing and improving civilization; and I think it 
cannot now be prevented. 

The institutions and characteristics of this country have their 
bearing upon this question. We have no sovereign but the law; 
or rather the people is the sovereign, and the law is their only 
utterance. It is a sense of this that has here transferred, in 
some degree at least, the loyalty which in the kingdoms of the 
Old World attaches to a person, to the law itself, using this 
word in its most comprehensive sense. This is a good thing; 
not because the law is always wise and good, but because it 
will more probably become wise and good, if the whole com¬ 
munity recognize it as entitled to obedience, and therefore enti¬ 
tled to their constant, earnest, and vigorous endeavors to cure 
its defects, and bring it into harmony with those principles of 
truth and justice of which it should be the expression. This 
great duty rests upon us with the stronger obligation because of 
our greater intelligence and activity of mind, or more general 
education and wider extent of common knowledge; all which are 
none the less facts, although they are sometimes used as mere 
food for vanity, or as topics for adulation. And all these things 
together seem to lead to the conclusion, that here and now 
proper efforts should be made to supply all of the community 
who ask for it,—with accurate and practical information con¬ 
cerning those laws which are of the most immediate concern to 
them. 

So far as concerns the whole people, their wish, if expressed in 
the simplest terms, would undoubtedly be, to know the laws which 
must regulate their conduct and determine their rights. This 
Wish admits of but one question; it is, How far is this thing 
practicable ? for so far as it is, its propriety and expediency can 
hardly be denied or doubted. Indeed, they who would most 
strenuously oppose any effort to teach the people the law, would 
do so only on the ground that it is impossible to give to the 
public any knowledge of this kind which would be wide enough 


PURPOSE AND USE OF THIS BOOK. 


25 


and accurate enough for use. They would think that the very 
endeavor to learn the law, by persons the main business of 
whose lives must be of a very different kind, would lead only to 
a superficial and erroneous view of the subject; and this, under 
the name of knowledge, is only the most dangerous ignorance. 

We should, however, remember, that the people generally, 
here and elsewhere, must necessarily know a certain amount of 
law, for without this they cannot live safely in society. For 
example, men in business must know something of the most 
general laws of business ; as how to conduct their sales, how to 
make notes, how to collect them, and the like; and all men 
must know so much of ordinary law as protects and defines 
their common and universal rights. Moreover, it will probably 
be admitted that important mistakes, leading to much loss and 
difficulty, are every day made, because many do not know those 
general principles or rules of law which some do know, and 
which every man in business might know. The question, there¬ 
fore, can only be, how much of law it is possible and desirable for 
men in business to learn ; and what is their best way of learm 
ing it. 

Here let me remark, that few persons, who have not had 
occasion to study and to teach Commercial Law as a whole, are 
aware of that unity and harmony of its principles, which make 
it indeed a system of laws ; or of the prevailing simplicity and rea* 
sonableness of its rules. An eminent English lawyer has said, 
that it was astonishing within how small a space all the princi¬ 
ples of commercial law may be compacted. It is equally true, 
that the laws of business are generally free from mere techni¬ 
cality and obscurity ; and the reason is, that they are for the 
most part, and substantially, nothing more than the actual prac¬ 
tice of the business community, expressed in rules and maxims, 
and invested with the authority of law. 

The knowledge which a trader acquires of the laws of trade 
need not, at all events, be superficial; for a knowledge of princi¬ 
ples, and an intelligent appreciation of them, however limited 
it may be, should not be regarded as superficial. And these 
limits need not be narrow. The extent of this knowledge, and 
its accuracy, thoroughness, and utility, must obviously depend 


26 


PURPOSE AND USE OF THIS BOOK. 


upon the books from which it is acquired, and upon the manner 
of using those books. 

Considerations of this kind led me to the belief, that it was 
possible to make a book, which should place within the appre¬ 
hension of every intelligent trader, and of every young man 
who proposes to engage in any department of business (and this 
now means almost every man in the community), at the cost of 
no more time than every one can conveniently give to it, a useful 
knowledge of all the elements, or general rules and principles, 
of the Laws of Business. 

In other words, I thought it an undeserved reproach of our 
Laws of Business, to say that they were not intelligible by all, if 
stated with simplicity and accuracy ; and an equally undeserved 
reproach of our Men of Business, to say that they could not 
comprehend laws, which were made for them, and were intelli¬ 
gible in themselves, and plainly stated. It seemed to me, there¬ 
fore, that the time had come, in this country, for a book which no 
one has ever attempted to make anywhere heretofore. This book 
should contain all the principles of all the branches of the laws 
which regulate the common transactions of life, stated with all 
the accuracy that care and labor could insure in any book, and 
so stated that any man of good capacity, with reasonable effort, 
might understand all of them ; and might, with the help of the 
Index, find in the volume a true and intelligible answer to the 
questions which every day arise ; and might, if he were willing 
to make a regular study of the whole book in course, become 
acquainted with the rules, and the reasons of the rules, by which 
all business may be safely conducted. And this book I have 
endeavored to make. I have compiled it, mainly from the law¬ 
books I have already made for the profession. If they are accu¬ 
rate and trustworthy, this is so ; and I may be permitted to say, 
that whatever earnest endeavors could do to make those books 
trustworthy was done ; and that accumulated testimony, which 
I have no right to disregard, encourages me to hope that I have 
not labored in this respect in vain. 

I have made changes which seemed to be required by the in¬ 
tended adaptation of this book to all men and not to lawyers 
only. These are, first, the omission of citations and references 


BUSINESS LA W IN GENERAL. 


2 7 


to reports and authorities ; next, the addition of some element¬ 
ary rules and principles and definitions, which would not be nec¬ 
essary in a book for lawyers only ; and lastly, the use of com¬ 
mon or non-professional language, the general omission of 
merely technical words, and the full explanation of such Xvords 
when they are used. 

If there are those who are preparing for a life of business, 
or are now engaged in it, who will study this volume, in course,—. 
dwelling on what seems most important, and examining with 
care what seems obscure,—I venture to hope that they will find 
the work so arranged, and the meaning so expressed, that what 
comes before explains what follows, and every part of it will be 
intelligible. At the same time, I have labored to make every¬ 
thing plain by itself, as far as that was possible, that it might 
not disappoint those who, without reading it in course, look into 
it for an answer to questions as they arise. And for such per¬ 
sons I have endeavored to have the Index of Subjects (at the 
end of the book) exceedingly full and minute. 

I have added a great variety of Forms. Of course no col¬ 
lection of Forms could be made large enough to meet the exact 
facts of every case that can arise. But it is possible to give 
accurate Forms of all sorts; and any person can select the 
Form nearest to his particular need, and easily make the altera¬ 
tions which the facts of his case require. 


CHAPTER II. 

BUSINESS LAW IN GENERAL. 

All law is divided into what it called, in law books, common 
law and statute law. We have legislatures, and our fathers had 
them; and a very large proportion of the laws now binding 
upon us were made by those legislatures in a formal and regular 
way. All these are Statutes; and taken altogether, they com¬ 
pose the Statute Law. Besides this, however, there is another 
very large portion of our law which was not enacted by our 



28 


BUSINESS LA W IN GENERAL. 


legislatures; and it is called the Common Law. In fewer 
words, all law was regularly enacted, or it was not. If it was, 
it is statute law; if it was not so enacted, it is common law. 

The common law of the several States of this country con¬ 
sists, in the first place, of all the law of England—-whether 
statute or common there—which was in force in that State at 
the time of our independence, and recognized by our courts, 
and which has not since been repealed or disused. And next, 
of all those universal usages, and all those inferences from, or 
applications of, established law, which courts in this country 
have recognized as having among us the force of law. For this 
common law there is no authority excepting the decisions of the 
courts; and we have no certain means of knowing what is or is 
not a part of the common law, excepting by looking for it in 
those decisions. Hence the value and importance of the 
reported decisions, which are published by official reporters in 
most of our States. 

A very important part of the common law, especially to all 
men in business, is what is called, by an ancient phrase, the 
Law-Merchant. By this is meant the law of merchants; or, 
more accurately, the law of mercantile transactions; and by 
this again is meant all that branch of the law, and all those 
principles and rules, which govern mercantile transactions of 
any kind. This great department of the law derives its force 
in part frpm statutory enactments, but in far greater part from 
the well-established usages of merchants, which have been 
adopted, sanctioned, and confirmed by the courts. For example, 
a large proportion of the law of factors and brokers, most of 
that of shipping and of insurance, and nearly all the peculiar 
rules applicable to negotiable paper (or promissory notes and 
bills of exchange payable to order), belong distinctly to the 
Law-Merchant. 

The courts of this country have always acknowledged that 
a custom of merchants, if it were proved to be so nearly uni¬ 
versal and so long established that it must be considered that 
all merchants know it and make their bargains with reference 
to it, constitutes a part of the law-merchant. And the law- 
merchant is itself a part of the common law, and therefore has 


BUSINESS LA W IN GENERAL . 


29 

the whole obligatory force of law. This would not be true, if 
the custom was one which violated statute law, or the obvious 
principles of public policy or common honesty. But we may 
suppose that no custom of this kind would ever be so generally 
adopted- and established as to come before the courts with any 
claim for recognition as law. 

A great deal of the language of every art or science or pro¬ 
fession is technical (indeed, technical means belonging to some 
art), and is peculiar to it, and may not be understood by those 
who do not pursue the business to which it belongs. This is 
as true of law as of everything else. In this work, however, I 
have avoided as far as possible mere law-words; and when I 
have used them have explained them at the time. There are 
some, however, which cannot be dropped : they express exactly 
what is meant, and we cannot express it without them, unless 
by long and awkward sentences. A good instance of this is in 
those words which end in er (or or) and in ee. As for example, 
promisor and promisee, vendor and vendee, indorser and indorsee. 
These terminations are derived from the Norman-French, which 
was, for a long time, the language of the courts and of the law 
in England. And it might seem that we had just as good 
terminations in English, in er and ed> which mean the same, 
thing. But it is not so. Originally they meant the same thing, 
but they do not now; for both er and ee are applied in law to 
persons, and ed to things; so that we want all three termina¬ 
tions. For example, indors er means the man who indorses; 
indorse means the man to whom the indorsement is made; but 
the note itself we say is indorse. So vender means the man 
who sells, vend^ means the man to whom something is sold, 
and the thing sold is vend^. And the promisor makes the 
promise, the promise receives it, and the thing to be done is 
promise. We have retained not only this phraseology, but 
some other words or phrases, of which similar things might be 
said. 


30 


OF INFANTS , OR MINORS. 


CHAPTER III. 

INFANTS, OR MINORS. 


SECTION I. 

Generally, all persons may bind themselves by contracts. 
But some are incapacitated. The incapacity may arise from 
many causes ; as from insanity; or from being under guardian¬ 
ship ; or from alienage in time of war; or from infancy; or 
from marriage. 

All persons are infants, in law, until the age of twenty-one. 
But in many of the States, women are considered of full age 
at eighteen, for some purposes. 

The rule of law is, that a person becomes of age at the 
beginning of the day before his twenty-first birthday. This 
rule opposes the common notion, and it rests on no very good 
reason, but on ancient authority and constant repetition. The 
reason assigned is, that the law takes no notice of parts of a 
day. The effect of the rule is, that a person born on the 9th 
of May in the year 1840, becomes of age at the beginning of 
the 8th of May, 1861, and may sign a note, or do any thing, 
with the full power of a person of age, on any hour of that day. 

The contract of an infant (if not for necessaries) is voidable, 
but not void. That is, he may disavow it, and so annul it, 
either before his majority, or within a reasonable time after it. 
As he may avoid it, so he may ratify and confirm it. He may 
do this by word only. But mere acknowledgment that the debt 
exists is not enough. It must be siibstantially , if not in form , 
a new promise. In England, and a few of our States, it is pro¬ 
vided by statute, that this confirmation can only be by a new 
promise in writing, signed by the promisor. The rule seems to 
be useful, and we think it will be more widely adopted. 

It must be a promise by the party, after full age, to pay the 
debt; or such a recognition of the debt as may fairly be under- 



OF INFANTS, OF MINORS. 


31 


stood by the creditor as expressive of the intention to pay it; 
for this would be a promise by implication. There are no par¬ 
ticular words or phrases which the law requires or favors as a 
confirmation. No ratification or confirmation can be used in 
any action which was brought before the ratification was made. 
It must also be made voluntarily, and with the purpose of 
assuming a liability from which he knows that the law has dis¬ 
charged him. And if it be a conditional promise, the party 
who would enforce it must prove the condition to be fulfilled. 
Thus, if the plaintiff relies on a new promise, and asserts and 
proves that the defendant said, after full age, “ I will pay when 
I am able,” he must also prove that the defendant was able to 
pay when the action was brought. 

If an infant’s contract is not avoided, it remains in force. 
And it may be confirmed without words; and the question 
sometimes occurs, whether confirmation by mere silence, after 
a person arrives at full age, prevents him from avoiding his con¬ 
tract made during his infancy. As a general rule, mere silence, 
or the absence of disaffirmance, is not a confirmation; because 
it is time to disaffirm the contract when its enforcement is 
sought. 

But if an infant buys property, any unequivocal act of owner¬ 
ship after majority—as selling it, for example—is a confirmation 
of the purchase. And, generally, a silent continued possession 
and use of the thing obtained by the contract is evidence of a 
confirmation ; therefore, if an infant buys a horse, and gives his 
note for it, and after he is of age the seller puts the note in 
suit, the buyer may return the horse and refuse to pay the note; 
but if he keeps the horse, this is considered evidence of a con¬ 
firmation of the note. The evidence of confirmation is much 
stronger if there be a refusal to re-deliver the thing when it! can 
be re-delivered; and is generally conclusive, when the conduct 
of the party must either be construed as a confirmation, or, if 
not so construed, must be regarded as fraudulent, or wrongful. 
Thus, where an infant purchased a potash-kettle, and gave his 
promissory note for the price, it being agreed by the parties that 
he might try the kettle, and return it if jt did not suit him ; and 
the vendor, after the infant became of age, requested him to 


32 


OF INFANTS, OF MINORS. 


return the kettle if he did not intend to keep it; but he retained 
and used it a month or two afterwards. The court held that 
this was a sufficient ratification of the contract, and that an 
action might be sustained on the note. 

The great exception to the rule that an infant’s contracts are 
voidable, is when the promise or contract is for necessaries. 
The rule itself is for the benefit and protection of the infant, 
and the same reason causes the exception; for it cannot be for 
the benefit of the infant that he should be unable to purchase 
food, raiment, and shelter, on a credit, if he has no funds. The 
same reason, however, enlarges this exception, until it covers 
not only strict necessaries, or those without which the infant 
might perish, or would certainly be uncomfortable, but all 
those things which are certainly appropriate to his person, station, 
and means. 

There is no exact dividing line which could make this defini- 
■tion precise. But it is settled that mercantile contracts, as of 
partnership, purchase and sale of merchandise, signing notes 
and bills, are not necessaries, and that all such contracts are 
voidable by the infant. So, if he gives his note even for neces¬ 
saries, he is not bound by it; but may defend against it on the 
ground that it was for more than their true value; and the jury 
will be instructed to give against him only a verdict for so much 
as the necessaries were worth. 

If he borrows money, to be expended in the purchase of 
necessaries, and gives his note, the debt, or the note, has been 
held, at law, voidable by the infant. But our courts would now 
hold an infant liable for such a debt; and it is well settled that 
an infant is liable for money paid at his request for necessaries 
for him; and if he give a note for necessaries with a surety who 
pays it, the surety may recover against the infant. 

If an infant avoid a contract, he can take no benefit from it; 
thus, if he contracts to sell, and refuses to deliver, he cannot 
demand the price; or if he contracts to buy, and refuses the 
price, he cannot demand the thing sold. 

An infant is as liable for torts (by torts or tortious acts the 
law means wrongs or offences) as an adult; and therefore, if he 
fraudulently represented himself as of age, when he was not, 


OF /JVFAJVTS, OF MINORS. 


33 


and so made a contract which he afterwards sought to avoid, 
this fraud will not prevent his avoiding the contract, but for the 
fraud itself he is answerable just as an adult would be. So if 
he disaffirms a sale, for which he has received the money, he 
must return the money; because keeping it would be a wrong , 
or a confirmation of the sale. So if after his majority he 
destroys or puts out of his hands a thing bought while an infant, 
he cannot now demand his money back, as he might have done 
on tendering the thing bought; for by his disposal of it he has 
acted as owner, and confirmed the sale. 

In general, if an infant avoids a contract on which he has 
advanced money, and it appears that he has received from the 
other party an adequate consideration for the money so advanced, 
which he cannot, or will not restore, he cannot recover back the 
money which he advanced. But if an infant has engaged to 
labor for a certain period, and, after some part of the work is 
performed, rescinds the contract, he can recover for the work 
he has done, as much as that work was worth. 

The contract of an infant is voidable only by him, or by 
those having a right to act for him, and not by the other party. 
The election to avoid or confirm belongs to the infant alone; 
and his having this right does not affect the obligation of the 
other party. Therefore, one who gives a note to an infant, or 
makes any other mercantile contract with him, must abide by it, 
unless the infant annuls it, which he can do if he chooses to. 

But if the note were given or the contract made by a fraud 
on the part of the infant, the injured party has the same right 
of defending against it on this ground as if the fraudulent party 
were not an infant. And it is a universal rule of the law, that 
no contract which is tainted with fraud is valid against an inno¬ 
cent party ; therefore, a wilfully false representation of the infant 
that he has reached his majority would be a fraud, and would 
enable the party dealing with him to set the contract aside. 

A father is bound to supply an infant child with necessaries ; 
and, if he does not, is liable for their value to any person who 
supplies them. And for these, as we have seen, the child him¬ 
self is also liable. 

Although in most of our States the law does not require that 
3 


APPRENTICES. 


34 

the confirmation or new promise of an adult, of a promise which 
he may avoid because it was made by him when an infant, must 
be in writing, it would always and everywhere be better and 
safer to have this new promise in writing. It should be in sub¬ 
stantially this form : 

( 1 .) 

I, Henry Thompson, having promised Nathan Green, to ( here describe the 
'promise , whether by a note , or verbally, for goods bought , or the like , briefly , 
but so that there may be no mistake about it) and at the time of making that 
promise I was a minor, within the age of twenty-one years, now, in consider¬ 
ation of said promise, I do hereby confirm and acknowledge the same, and 
promise a full performance and execution thereof. Henry Thompson. 

It would often be easier, if both parties assented, simply to 
give a new note for the amount due. But it might, in many 
cases, be better that the new promise should tell the story of 
the old promise for which it is given. 


CHAPTER IV. 

APPRENTICES. 

The contract of apprenticeship is generally in writing, and 
is also most frequently by deed, (or writing under seal,) and is to 
be construed and enforced as to all the parties by the common 
principles of the law of contracts. Usually, the apprentice, 
who is himself a minor, and his father or guardian with him, 
covenant that he shall serve his master faithfully during the 
term. And the master covenants that he will teach the appren¬ 
tice his trade; but the instrument is not made invalid by the 
omission to specify any trade or profession as that to be taught. 
He also covenants to supply him with all necessaries, and at the 
end of the term, give him money or clothes. Slight informali¬ 
ties would not make the instrument void. Even if they are of 
sufficient magnitude to have this effect, the instrument will 
prescribe and measure the claim of each of the parties against 
the other, if they have lived under this instrument as master 



APPRENTICES. 


35 

and servant. But the apprentice’s consent will not be inferred 
from his mere signature, but must be expressed. 

In case of sickness the master is bound to provide proper 
medicines and attendance. The master cannot transfer his trust, 
or his rights over the apprentice. He has no right to employ 
the apprentice in menial services not connected with the trade 
or business which he has agreed to teach him. And when he 
neglects to take due charge of the apprentice, the parent’s or 
guardian’s authority will revive. 

The sickness of the apprentice, or his inability to learn or 
to serve, without his fault, does not discharge the master from 
his covenants, because he takes this liability on himself. Nor 
will such misconduct as would authorize a master to discharge 
a common servant, release the master of an apprentice from his 
liability on his contract. But if the apprentice deserts from his 
service, and contracts a new relation which disables him from 
returning lawfully to his master, the latter is not bound to 
receive him again if he offers to return. 

Not only a party who seduces an apprentice from his service 
is liable, ]put where one employs an apprentice without the 
knowledge and consent of his master, the employer is liable to 
the master for the services of the apprentice, although he did 
not know the fact of the apprenticeship. It may be added that 
if an action be brought for harboring an apprentice against the 
will or without the consent of his master, the plaintiff is bound 
to prove that the defendant had a knowledge of the apprentice¬ 
ship. But a defendant who did not know the apprenticeship 
when he hired or received the apprentice, and who being 
informed thereof continued to retain and harbor him, thereby 
makes himself liable. 

( 2 .) 

A General Indenture of Apprenticeship, as sometimes 
used in New England. 

This Indenture, Made the day of by and between A. B. 

of and C D. his son, of the age of years, of the one part, 

and R. J. of of the other part, witnesseth, that the said C. D., by 

and with the consent of the said A B. (testified by his signing and sealing 
these presents) hath bound out himself as an apprentice, to 
of to be taught in the said trade, science or occupation 


APPRENTICES. 


3 6 

of a which the said R. J. now uses, and to live with, continue, and 

serve him as an apprentice from the day of the date hereof (or from 
the day of next coming) unto the full end and term of seven 

years from thence next ensuing and fully to be complete and ended. During 
all which said term of seven years, the said A. B. doth covenant and promise 
to and with the said R. J. that he, the said C. D., shall and will well and 
faithfully serve and demean himself, and be just and true to him the said 
R. J. as his master, and keep his secrets, and everywhere willingly obey all 
his lawful commands ; that he shall do no hurt or damage to his said master 
in his goods, estate, or otherwise, nor willingly suffer any to be clone by 
others, and whether prevented or not, shall forthwith give notice thereof to 
his said master; that he shall not embezzle or waste the goods of his said 
master, nor lend them without his consent to any person or persons whatso¬ 
ever ; that he shall not traffic, or buy and sell, with his own goods, or the 
goods of others, during the said term, without his master’s leave ; that 
he shall not play at cards, dice, or any other unlawful games, whereby his 
said master may sustain any loss or damage, without his consent; that he 
shall not haunt or frequent play-houses, taverns or ale-houses, except it be 
about his master’s business there to be done ; and that he shall not at any 
time, by day or night, depart or absent himself from the service of his said 
master without his leave ; but in all things, as a good and faithful apprentice, 
shall and will demean and behave himself to his said master, and all his, 
during the said term. And for and in consideration of the sum of 
to him in hand paid, etc., the receipt, etc., the said R. J. doth covenant, 
promise, and agree to teach and instruct his said apprentice, or otherwise 
cause him to be well and sufficiently taught and instructed, in the said trade 
of a after the best way and manner that he can; and shall and will 
also find and allow unto his said apprentice meat, drink, washing, lodging, 
and apparel, both linen and woolen, and all other necessaries in sickness and 
in health, meet and convenient for such an apprentice, during the term afore¬ 
said ; and at the expiration of the said term, shall and will give to his said 
apprentice (over and above his then clothing) one new suit of apparel, viz., 
coat, waistcoat, and breeches, hat, shoes, and stockings, and linen, fit and 
suitable for such an apprentice. 

In Witness Whereof, The said parties have interchangeably set their 
hands and seals hereunto. Dated the day of in the year of 

our Lord one thousand eight hundred and 

(Signatures.) (Seals.) 

(Witnesses.) 

( 3 .) 

Shorter Indenture of Apprenticeship. 

This Indenture Witnesseth, That by and with the consent of 

hath put himself, and by these presents doth voluntarily, and of his 
own free will and accord, put himself Apprentice to to learn the art, 

trade, and mystery of and after the manner of an Apprentice to 


MARRIED WOMEN. 


37 


serve the said for and during, and to the full end and term of 

next ensuing. During all which time the said Apprentice doth covenant 
and promise, that he will serve his master faithfully, keep his secrets, and 
obey his lawful command ; that he will do him no damage himself, nor see 
it done by others, without giving him notice thereof—that he will not waste 
his goods, nor lend them unlawfully—that he will not contract matrimony 
within the said term—that he will not play at cards, dice, or any other 
unlawful game, whereby his master may be injured—that he will neither buy 
nor sell, with his own goods or the goods of others, without license from 
his master—and that he will not absent himself day nor night from his 
master’s service, without his leave—nor haunt ale-houses, taverns or play¬ 
houses, but in all things behave himself as a faithful Apprentice ought to do 
during the said term. And the said master on his part doth covenant and 
promise, that he will use the utmost of his endeavors to teach, or cause to 
be taught or instructed, the said Apprentice in the art, trade, or mystery 
of and will procure and provide for him sufficient meat, drink, 

clothing, lodging, and washing, fitting for an Apprentice, during the said 
term, and will give him quarters schooling during the said 

term. 

And for the true performance of all and singular the covenants and 
agreements aforesaid, the said parties bind themselves each unto the other, 
firmly by these presents, 

In Witness Whereof, The said parties have interchangeably set their 
hands and seals hereunto. Dated the day of in the year of 

our Lord one thousand eight hundred and 

Executed and delivered before 

(Witnesses.) (Signatures i) (Seals.) 


CHAPTER V. 

MARRIED WOMEN. 

By the original common law of this country, a married 
woman is wholly incapable of entering into mercantile contracts 
on her own account. By the fact of marriage, her husband 
becomes possessed of all her real estate during her life, and if a 
living child be born of the marriage, he has her real estate during 
his own life, if he survive her. This life-right in her real estate 
is called, in law, his tenancy by the curtesy. 

All the personal property which she has in actual possession 



MARRIED WOMEN. 


33 

becomes by common law, absolutely his, as entirely as if she 
had made a transfer of it to him. But by property in possession 
the law means only her goods and chattels; or things which 
can be handled; and which actually are in her hands, or under 
her direct and immediate control. If she have notes of hand, 
money due her, or shares in various stocks, these are not con¬ 
sidered as things in possession, but as things in action. 

Things in possession are those things which one has now in 
his hands, and tilings in action (called in law choses in action ), 
those which are so called because he who owns them cannot get 
possession of them without an action, if other persons choose to 
resist him. All debts, and evidences of debt, as bonds, notes, 
and all shares in stocks, whether national or State, or of incor¬ 
porated companies or other companies, are things in action. 
But bank-bills are usually regarded as money, and therefore as 
things in possession. The common law makes a wide difference 
between things in possession and things in action in many 
respects. 

The common law of husband and wife as to things in action 
is this. The husband may, if he pleases, reduce them to his 
possession, and so make them absolutely his own. In general, 
he does this by any act which is distinctly an act of ownership; 
as if he demands and collects the debts due to her, or indorses 
her notes—which he can do in his own name—and sells them, 
or has the stock transferred to his own name, or, in general 
makes any final and effectual disposition of these things in 
action. Then they have become absolutely his own. 

If, however, he does not reduce them to possession, and dies, 
and she survives him, her whole right and property revive at 
his death, without any interest whatever in his representatives. 
And even if he disposes of them by will, this is ineffectual, 
unless he had reduced them into his possession while he lived. 

If, however, he survives her, he will be made, if he wishes 
it, her administrator, and then can collect all her things in action , 
and hold them or their proceeds as his own. And if she dies, 
and then he dies before he has collected these things in action, 
administration on his wife’s effects will be granted to his next 
of kin, and not to hers; and when collected, they will belong to 
his estate. 


MARRIED WOMEN. 


39 

On the other hand, the husband is liable, by the common 
law, with her, for all the debts for which his wife was liable 
when he married her. This is true whether they were then 
payable, or did not mature until after the marriage; and 
whether he received anything with her or not. If he does not 
pay them, and dies before the creditor has obtained a judgment 
against him, his estate is not liable, even if he had a fortune 
with her, and that fortune goes to his heirs or his creditors, and 
her creditors get nothing. So it is if the wife dies before the 
creditor recovers a judgment against the husband, and the 
husband then retains all her fortune. But her responsibility 
revives at his death, and she is liable as before marriage, even 
if she carried him a fortune, and all her fortune went,. as 
above stated, to his representatives. But if she dies, leaving 
things in action not reduced by the husband to possession, and 
he reduces them to his possession as her administrator, he must 
apply them to the payment of her debts, and can hold for 
himself only what is left after such payment. 

Such, we have said, is the common law of England and of 
this country. We have stated it, because it is the origin and 
common foundation of the law everywhere. But it is not just 
or right; and there are few, perhaps no one of our States, in 
which it remains wholly unqualified by statutory provisions. 
But these provisions are very various; and in some of the States 
they change with almost every year. 

By the common law a widow is entitled to dower, that is, to 
the use and occupation during her life of one-third of the lands 
owned by the husband at any time during the existence of the 
marriage relation between them. 

In nearly all the States a married woman conveys her own 
real estate, and releases dower by joining in a deed with her 
husband; but she is not generally bound by covenants therein, 
and, in many, must be separately examined. In most, she has 
a certain time, after removal of the disability of coverture, to 
assert her different rights, otherwise barred. Generally, devises 
or conveyances to husband and wife create .a joint-tenancy, 
unless the terms of the devise or conveyance are expressly 
otherwise. And, upon the marriage of a woman who is plaintiff 


40 


MARRIED WOMEN. 


or defendant, the suit does not abate, but the husband may be 
admitted to prosecute or defend with her. 

I give here an Abstract of the law of husband and wife, as 
it stands on the Statutes of the several States and Territories. 

For statute provisions respecting homesteads, see the 
Abstract of Laws relating to the Collection of Debts. 

ALABAMA. 

In Alabama, the wife’s separate estate is alone liable for her antenuptial debts, 
and the husband is not liable. All her property held before, or acquired after, 
marriage, is secured to her separate use. The husband is her trustee, but not liable 
to account for the profits. She need not be of full age to release dower. The pro¬ 
ceeds of a sale of her property are her separate estate, which the husband may use 
as most beneficial for her. They cannot contract with each other for the sale of 
any property. He may receive property coming to her. Her estate is liable for 
necessaries for the family. If a suit therefor is brought against a husband, and 
execution is not satisfied, her separate estate may be sold by order of court. She 
may dispose of her property by will. If the husband is unfit to manage her estate, 
or abandons her, she may be vested with the powers of a feme sole. If the wife 
die intestate, the husband is entitled to one-half of the personalty absolutely, and to 
the use of the realty during life, unless incapacitated. 

ARIZONA. 

All property of the wife owned by her before marriage, or afterwards acquired 
by gift, devise, bequest, or descent, is her separate property, and is not liable for 
debts of the husband. She may sue and be sued, in reference to her separate prop¬ 
erty, as though unmarried, and may carry on business in her own name by complying 
with certain statutory provisions. If of the age of twenty-one years or over, she shall 
have the sole and exclusive control of her separate property, and may sell and con¬ 
vey her lands without being joined by the husband. Dower is abolished. 

ARKANSAS. 

In Arkansas, a feme covert may be seized in her own right of any property not 
coming from her husband. A married woman cannot be executrix. Her real and 
personal property are her sole property, and are not liable for her husband’s debts, 
but may be controlled by her, and she may sue or be sued on account thereof, as if 
unmarried. The filing of a schedule of such separate property in the office of the 
recorder of the county where she lives is prima facie evidence of her title. May 
make a will; may insure her husband’s life for her own benefit; may manage and 
carry on business with her separate estate; and her contracts in respect thereto are 
not binding on her husband. 


CALIFORNIA. 

In California, all property owned before marriage, or subsequently acquired 
by gift, bequest, devise, or descent, by either party, is the separate property of each; 


MARRIED WOMEN. 


41 

but all otherwise acquired by either after marriage is common property. An inven¬ 
tory of the wife’s separate property, acknowledged or proved, as for a conveyance 
of land, may be recorded; and this shall be notice of the wife’s title; and her prop¬ 
erty included therein is exempt from seizure or execution for the debts of her hus¬ 
band. She may hold, convey, and devise her separate property, real and personal, 
as freely as if unmarried, but her conveyances to be operative must be acknowledged 
by her. In certain cases, a trustee may be appointed to manage her property. The 
husband has the entire control and management of the common property, with like 
absolute power of disposition as of his own separate property; and the rents and 
profits of the separate property of both are deemed common property, unless with 
respect to the wife, the terms of the bequest, devise, or gift, are otherwise. Dower 
and curtesy are abolished. Upon the death of either party, one-half the common 
property goes to the survivor, and the other half to the descendants of the deceased, 
subject to the payment of his or her debts; if there are no descendants, the whole 
to the survivor, subject to such payment. Upon divorce, the common property is 
equally divided. The separate property of the wife is alone liable for her ante¬ 
nuptial debts. But the parties may control these provisions by marriage contract, 
which must be in writing and recorded, or otherwise shall not affect third parties. 
It may be entered into by a minor, but cannot alter the legal order of descent, nor 
derogate from the husband’s rights over the persons of his wife and children as 
head of the family, or the survivor’s rights as guardian of the children. When a 
married woman is party to a suit, her husband is to be joined; except, if the action 
concerns her separate property, she may sue alone; and, if between herself and her 
husband, she may sue and be sued alone. If both are sued together, she may 
defend in her own right. By complying with certain requirements, she may carry 
on, in her own name, any business, trade, profession, or art, and the property, etc., 
invested belongs exclusively to her; and she has all the legal privileges and disa¬ 
bilities of debtor and creditor, and becomes responsible for the maintenance of her 
children. Her husband is not liable for her debts thus contracted without special 
written promise; and she must take an oath that not more than $500 of the amount 
invested proceeded from him. She may cause the life of her husband to be insured 
for her benefit. The personal property of the wife can be sold or transferred only 
when husband and wife join in the sale or transfer, excepting only what she holds 
as a feme sole. She may dispose of her separate property by will, in like manner as 
any other person. Her earnings are her separate property. 

COLORADO. 

All property coming to the wife before or after marriage, except from her hus¬ 
band, remains her sole and separate property. She may bargain and sell, and enter 
into any contract in regard to the same as if she were sole. She may sue or be 
sued in regard to her property, person, or reputation, the same as if sole; may 
make a will, but she cannot bequeath away from her husband more than one-half 
her property without his consent in writing. She may carry on business on her 
own account, and her earnings are her separate property. The husband is liable 
for the debts of his wife contracted before marriage to the extent* of the property he 
may receive through her, but no further; and the wife may contract debts, sign 
bonds, bills, and notes, and sue and be sued in regard to the same as if she were 
sole. Dower is abolished. 


42 


MARRIED WOMEN. 


CONNECTICUT. 

. In Connecticut, all real estate conveyed to a married woman, in consideration 
of property acquired by her personal services during coverture, shall be held by her 
to her sole and separate usej and the avails of all sales of the real estate of a 
married woman, if invested in her name, or in the name of a trustee for her, 
belong to her. When any man abandons his wife for a continuous period of three 
years, with total neglect of duty, she may petition the Superior Court, as a court 
of equity, in any county where she owns real estate, and such court shall pass a 
decree empowering her to execute all conveyances necessary to dispose of such 
real estate, as if she were a feme sole. All the personal property of any woman, 
married since the 22d of June, 1849, and all the personal property acquired there¬ 
after by a married woman, and the avails of any such property if sold, shall vest in 
the husband in trust, to receive and enjoy the income thereof during his life, subject 
to the duty of expending therefrom so much as may be necessary for the support 
of his wife during her life, and of her children during their minority, and to apply 
such part of the principal {hereof as may be necessary for the support of the wife, 
or otherwise, with her written assent; and upon his decease the remainder of such 
trust property shall be transferred to the wife, if living, otherwise as she may by 
will have directed, or in default of such will to those entitled by law to succeed to 
her intestate estate; but if the husband shall have paid liabilities incurred by her 
before marriage, a proper court of equity may, upon his application, discharge said 
trust, and vest absolutely in him such portion of said property as may be equiva¬ 
lent in value to the amount of such liabilities so paid. General Statutes, Revision 
of 1875, pp. 185, 187. Chapter 114, of the Laws of 1876-1877 (approved 16th of 
March, 1877), makes important changes in the relations between husband and wife. 
It leaves, however, the provisions above stated, in full force as to existing marriages, 
unless the persons now married agree to substitute the provisions of this latest 
statute. By this statute, neither husband nor wife acquires by marriage any interest 
in the property of the other, except as provided in this statute. Her earnings are 
her own property. She may contract with third persons or convey property to 
them as if unmarried. The property of either is not liable for the debts of the 
other, incurred before or after marriage. The purchases of either are presumed 
to be on his or her own account, unless they have gone to the support of the family, 
or for her reasonable apparel, or for her support when abandoned by her husband, 
in which cases he is liable. He is bound to support the family. On the death of 
either, the survivor has the use for life of one-third of the property, real and 
personal, of the other, which right is not to be defeated by any will of the other. 
If there be no will the survivor takes the third absolutely, and if no issue one- 
half. If either leaves a legacy to the other, that legacy is to be taken instead of this 
right; but the legatee may elect whether to accept the legacy or his or her statutory 
share. The judge of probate may make the wife a reasonable allowance for the 
support of herself and family during the settlement of the estate. They may con¬ 
tract before or after marriage for a provision in lieu of this statutory share. Neither 
party abandoning the other is entitled to this share. The provisions of this statute 
apply only to marriages hereafter contracted; but parties now married may enter 
into a contract to substitute for their rights under other statutes, or at common 
law, the rights given by this act. 

A married woman whose husband is under a conservator has all the rights as to 
her property and estate as though unmarried. Pub. Acts, 1881, chap. 149. 


MARRIED WOMEN. 


43 


DAKOTA. 

A married woman may own in her own right real and personal property, and 
manage, sell, convey, and devise the same as freely as though unmarried. She may 
make contracts, and sue or be sued thereon. Neither husband or wife has any 
interest in the property of the other, or is answerable for the other’s acts.. Hus¬ 
band and wife may make contracts with each other respecting property as though 
unmarried. The earnings or separate property of the wife are not liable for the 
debts of the husband. Women attain their majority at eighteen. Curtesy and 
dower are abolished. 


DELAWARE. 

The real and personal property of any married woman, whether acquired before 
or after marriage from any person but her husband, is her sole and separate prop¬ 
erty, not subject to the disposal of her husband, or liable for his debts. She may 
receive and control her separate earnings, and may sue and be sued in regard to 
her separate property. She may also make any contracts necessary to be made 
with respect to her property. In purchasing real estate, she may give any bond, 
mortgage, or security as if sole, and her husband need not join. She may be execu¬ 
trix or administratrix. She may make a power of attorney. If twenty-one years of 
age, sh^ may dispose of her property, real and personal, by will. A widow is enti¬ 
tled to dower, as at common law, but if the husband die without leaving issue, she 
Is entitled to one-half, instead of one-third, of the real estate. 

DISTRICT OF COLUMBIA. 

Property, real or personal, belonging to a married woman at the time of her mar¬ 
riage, or afterwards acquired otherwise than by gift or conveyance from the hus¬ 
band, is not subject to disposal by the husband, or liable for his debts, and may be 
conveyed, devised, or bequeathed by her, as though she were unmarried. A mar¬ 
ried woman may contract, sue, and be sued in her own name in all matters relating 
to her sole and separate property. The earnings of a married woman are still the 
property of the husband. 

FLORIDA. 

All property, real and personal, of the wife owned by her before marriage, or 
acquired afterwards by gift, devise, descent, or purchase, shall be her separate 
property, and not liable for the debts of the husband. But to protect such prop¬ 
erty from the claims of the husband’s creditors, it should be inventoried and 
recorded in the clerk’s office of the county where the property is situated within six 
months after the marriage, or after the date when the property was acquired. 
Husband and wife must join in any conveyance of her property, and in case of con¬ 
veyance of real estate, she must make a separate acknowledgment apart from her 
husband. A married woman cannot make a contract to bind her separate property 
unless her husband joins with her; but on petition in chancery she may, by license 
of court, become a free dealer, and manage and control her own estate, and con¬ 
tract and sue in reference to the same, as though unmarried. Dower as at common 
law; but the widow may elect, instead of dower, to take a child’s share in the estate 
of her husband, subject to the payment of his debts. A married woman may dis¬ 
pose of her property, real and personal, by will, as though unmarried. 


44 


MARRIED WOMEN. 


GEORGIA. 

In Georgia, marriage settlements, if not recorded within three months after exe¬ 
cution, are invalid as to bona Jide purchasers, creditors, or sureties without actual 
notice, becoming so before actual recording. The husband takes administration, 
and is sole heir of his deceased intestate wife, unless she leaves children and a sep¬ 
arate estate, in which case such estate is divided between the husband and the chil¬ 
dren. On the death of the husband without issue, the wife is the sole heir. If 
deserted, her earnings vest in herself. A husband married after 1856 is not liable 
for his wife’s debts, further than the property received through her will satisfy; and 
such property is not liable for his debts existing at the time of the marriage. A 
married woman may deposit in any savings institution any sum not more than $ 2,000, 
the earnings of herself or children, as her own separate property, as if she were 
unmarried. The property of the wife coming to her before or after marriage 
remains her separate property, and is not liable for the debts of the husband. All 
acquisitions of the wife when living separate from her husband are her own. She 
may be a free-trader, with the consent of her husband, may sue and be sued alone 
in regard to her separate estate, and may make a will with the consent of her hus¬ 
band. Dower is allowed only in land which the husband owned at the time of his 
death, or to which he obtained title in right of his wife. 

IDAHO. 

All property, real and personal, owned by the husband or wife respectively 
before the marriage, and that subsequently acquired by gift, bequest, devise, or 
descent is separate property. The wife must sign, acknowledge, and have recorded 
a complete inventory of her separate property in the county where it is situated. 
The husband has the management and control of the wife’s separate property dur¬ 
ing the continuance of the marriage, but can make no sale or alienation thereof, or 
encumbrance thereon, except by an instrument in writing, signed by both husband 
and wife, and acknowledged by her, separate and apart from him. All the prop¬ 
erty acquired by either party after marriage, except such as is acquired by gift, 
bequest, devise, or descent, is common property. The husband has the entire man¬ 
agement and control of the common property, with the same power of disposition 
as of his own separate estate. The rents and profits of all separate property of 
both husband and wife are deemed common property, unless it is otherwise pro¬ 
vided in the instrument of devise. On the dissolution of the community by the 
death of the husband, half of the common property goes to the survivor, and half 
to descendants, if any; if not, all to the survivor. On the death of the wife, the 
entire common property goes to the husband. On dissolution by decree of court, 
the common property is equally divided, unless, in case of adultery or extreme 
cruelty, the court otherwise orders. The note of a married woman binds her sepa¬ 
rate estate. She may dispose of all her separate property, real and personal, by 
will. 


ILLINOIS. 

In Illinois, a married woman may own, in her own right, real and personal 
property obtained by descent, gift, or purchase, and manage, sell, and convey the 
same to the same extent and in the same manner that the husband can property 
belonging to him. Neither husband nor wife shall be liable for the debts of the 


MARRIED WOMEN. 


45 

other contracted before marriage, nor for the separate debts of each other. Con¬ 
tracts may be made and liabilities incurred by a wife, and the same enforced against 
her, to the same extent and in the same manner as if she were unmarried; but she 
cannot enter into or carry on a partnership without the consent of her husband, 
unless he have abandoned her, or is idiotic or insane, or in the penitentiary. She 
may sue and be sued alone, as if she were unmarried. Neither he or she can 
recover any compensation for any labor performed or services rendered for the 
other. Provisions are made for the protection and support of the wife in case of 
her abandonment by the husband. By another act, tenancy by the curtesy is abol¬ 
ished, and husband and wife are put on the same footing as to dower. Married 
woman may sue alone in regard to her separate property, and when the suit is 
between husband and wife; may be executrix if her husband file his consent. She 
may make a will. 


INDIANA. 

In Indiana, a married woman holds her real and personal property and all the 
income therefrom absolutely as her separate property, free from liability for the 
debts of the husband, but she cannot sell or encumber her real estate unless the 
husband join in the conveyance. She may dispose of her separate personal prop¬ 
erty as if unmarried; may carry on any trade or business, and her earnings and 
profits therein are her separate property; and may enter into any contract in refer¬ 
ence to her separate personal estate or business, or the management and improve¬ 
ment of her separate real estate, and may sue or be sued thereon. The husband is 
not liable for debts contracted in her separate business. Curtesy and dower are 
abolished. The widow takes one-third of her deceased husband’s real estate in fee, 
free from the demands of creditors, where it does not exceed ten thousand dollars 
in value. Where it does not exceed twenty thousand, she takes, as against credi¬ 
tors, one-fourth only, and when it exceeds twenty thousand, one-fifth. She takes 
one-third of the personalty after the payment of debts. When the husband dies 
intestate, leaving a widow and one child, each takes one-half of the real estate and 
one-half of the personal property on distribution. There are special provisions in 
reference to second marriages. A married woman may make a will, as if single. 
A woman is eligible to any office the election to which is vested in the general 
assembly, or appointment in the Governor, to act as short-hand reporter in the 
county courts, and to any office under the school laws. 

IOWA. 

In Iowa, a married woman owns in her own right all property, real or personal, 
which came to her by descent, gift, or purchase, and may manage, dispose of, and 
devise the same by will without the interference of her husband. Neither the husband 
nor wife is liable for the debts or contracts of the other, made or incurred before mar¬ 
riage or after. For all civil injuries by the wife, damages may be recovered from 
her alone. In case of abandonment of either by the other, the party abandoned 
may petition the court, who may, on sufficient proof of the facts, authorize the peti¬ 
tioner to manage or encumber the property of the abandoning party for the support 
of the family. Each may constitute the other his or her attorney in fact. She may 
sue for and recover wages for her personal services, and hold what she recovers as 
her own property. She may make contracts and incur liabilities in the same man- 


46 


MARRIED WOMEN. 


ner as if unmarried. The husband is not liable upon contracts relative to his wife’s 
separate property or purporting to bind herself alone, nor is the property or income 
of either liable for the debts of the other. Family expenses, education of children, 
etc., are chargeable upon the property of both, or either. They may be sued 
jointly, or the husband separately. The husband cannot remove the wife or chil¬ 
dren from the homestead without their consent. The estate by the curtesy is abol¬ 
ished, and the husband is entitled to the same rights of dower as the wife. When 
judgment is against husband and wife, execution may issue against the property of 
either or both. If both are sued jointly, the wife may defend for her own right, or 
for her husband’s right also. A married woman may receive gifts or grants from 
her husband without the intervention of a trustee, and may hold stock in bank, and 
vote. 


KANSAS. 

In Kansas, the property, real or personal, of a married woman, owned at the 
time of her marriage, or subsequently received, is her sole and separate property, 
not subject to the disposal of her husband, nor liable for his debts. She may sell 
and convey, or enter into any contract relating thereunto, and may sue and be sued, 
as if sole. She cannot bequeath more than half of her property away from her hus¬ 
band without his written consent. If either die intestate and without issue, all his 
or her property goes to the survivor. If a husband deprives his wife by will of 
more than half his property, she may elect to accept the conditions of his will, or 
take half of his property. Dower and curtesy are abolished. She may carry on 
trade, and her earnings are her separate property. 


KENTUCKY. 

In Kentucky, the husband has no interest in the real estate or real chattels of 
the wife, except the use of them, with power to rent real estate for three years at a 
time. Such estate is only liable for her antenuptial debts, and for contracts for 
necessaries for the family, the husband included, when evidenced by writing signed 
by her. Her chattels real may be conveyed in the same way as land, and the pro¬ 
ceeds go to the husband, unless otherwise provided. He is not liable for her ante¬ 
nuptial debts except to the amount received by her independent of real estate. 
Provision exists for a married woman’s acting as feme sole in case of abandonment, 
imprisonment of husband, etc. The wife of a non-resident husband may act as a 
feme sole. An alien wife of a citizen husband may inherit property. The deeds of 
a fevte covert may be either joint or separate, and must be separately acknowledged. 
Marriage agreements must be recorded. She has the general rights of an unmar¬ 
ried woman in regard to stock held for her exclusive use. Real or personal estate 
conveyed or devised to her, except as a gift, cannot be aliened without the consent 
of her husband. Provision exists for the sale of married women’s property. A 
married woman may dispose of her separate property by will, or in the execution 
of a power. Wills are revoked by a subsequent marriage, except when made under 
power of appointment, when the estate would not, in default of such appointment, 
go to the heirs. A husband is entitled to his deceased wife’s personal estate. A 
widow is entitled to one-third of her husband’s personal estate if he leave issue, 
otherwise to one-half. She may deposit in bank and check, as if sole; but rights 


MARRIED WOMEN. 


47 


of third parties are not affected if bank has notice. When there is no appearance 
of fraud, on joint application of husband and wife, court may empower her to use, 
sell, and convey, for her own benefit, any property she may own or acquire ; and to 
trade in her own name, as a feme sole , and dispose of her property by deed or by 
will; and in all cases it is free from the debts of her husband, and liable for her own. 


LOUISIANA. 

In Louisiana, the wife cannot appear in court without the authority of her hus¬ 
band, though she may be a public merchant, or hold her property separate from 
him. Even then, she cannot alienate, mortgage, or acquire by gratuitous or unen¬ 
cumbered title without his written consent. She may be authorized by the judge 
of probate upon his refusal, and, if separated from bed and board, has no need of 
the authorization of her husband. If a public merchant, she may, without being 
empowered by him, obligate herself in anything relating to her trade; her husband 
is also bound, if there is a community of property. She is considered a public 
merchant if she carries on a separate trade, but not if she retails only the merchan¬ 
dise of the commerce carried on by him. If the husband is under interdiction, or 
absent, the judge may authorize her to act as if unmarried. She may make a will 
without his authority. But she cannot become an executrix without his consent or 
the court’s. She may act as a mandatary. Neither party can be a witness for or 
against the other. They may, by marriage contract, determine the rights of prop¬ 
erty, but cannot change the legal order of descents, nor derogate from the husband’s 
rights over the person of his wife and children, or as head of the family, nor with 
respect to children if he survive the wife, nor from the prohibitory dispensations of 
the Code. The property of married persons is divided into “ separate ” and “ com¬ 
mon”; and the separate property of the wife into “dotal” and “extra dotal,” or 
“ paraphernal.” The “ dotal ” is that which the wife brings to the husband to 
assist him in bearing the expenses of the marriage establishment. Full provisions 
exist as to the settlement, administration, recovery, subject-matter, etc., of dowry, 
and the rights of both parties therein, and as to the administration, fruits, etc., of 
the extra-dotal effects. The wife has a legal mortgage on her husband’s immova¬ 
bles, for the restitution of her dower, which he may release by giving a special 
mortgage to the satisfaction of a family meeting, etc., or in accordance with stipula¬ 
tions in the marriage contract; but it shall not be lawful to stipulate that no mort¬ 
gage shall exist. This mortgage must be recorded to avail against third persons. 
A partnership, or community, of acquests or gains exists by operation of law in all 
cases. But the parties may modify or limit it, or agree that it shall not exist; in 
which case there are provisions preserving to the wife the administration and 
enjoyment of her property, and the power of alienating it as if paraphernal, with 
reference to the expenses of the marriage and liability of the husband. This com¬ 
munity consists of the profits of all the effects of which the husband has the admin¬ 
istration and enjoyment, either of right or in fact, of the produce of the reciprocal 
industry and labor of both husband and wife, and of the estates which they may 
acquire during marriage, either by donations made jointly to them both, or by pur¬ 
chase, or in any similar way, even though the purchase be in the name of one, and 
not of both. Debts contracted during marriage enter into this partnership, and 
must be acquitted out of the common fund; but those contracted before marriage, 
out of individual effects. The husband is the head and master of the community, 


MARRIED WOMEN. 


48 

administers 1’ts effects, disposes of the revenue, and may alienate by an unencum¬ 
bered title, without the wife’s consent. There are special provisions as to con¬ 
veyances and dispositions of the community property and gains; effect of dis¬ 
solution of marriage; ability of the wife to exonerate herself from debts con¬ 
tracted during marriage by renouncing the partnership; effect of such renunciation; 
death; survivorship; separation a mensa et thoro; separation of property dur¬ 
ing coverture; rights of creditors, etc. Either party, by marriage contract or 
during marriage, may give to the other all he or she might give to a stranger. 
Property acquired in the State by non-resident married persons, whether the title is 
in the name of either or in their joint names, is subject to the same provisions as if 
owned by citizens of the State. If husband or wife die intestate, without ascend¬ 
ants or descendants, his or her share in the community property is held by the sur¬ 
vivor in usufruct for life; if the deceased intestate leave issue of the marriage, the 
survivor holds such issue’s inheritance in usufruct till death or second marriage. 


MAINE. 

In Maine, a married woman holds as her separate property whatever she pos¬ 
sessed before marriage, and whatever comes to her after marriage, unless purchased 
by the husband’s money or coming from him so as to defraud his creditors, and has 
all the usual rights of a single woman as to it, but cannot convey property received 
through the husband or his relatives unless he join. Her property is alone liable 
for her debts before marriage. Although under twenty-one years, she is of full 
age. Real estate may be conveyed to a wife by her husband as security for a bona 
fide debt, and this may be conveyed by her without his being joined in the deed. 
Letters of administration may be granted on her estate, and all debts contracted 
for her benefit shall be paid by her executor, and allowed him. She may engage in 
trade on her own account, and any contract made by her is valid, and her property 
is liable to execution for her debts; his property is exempt in any such case unless 
he were a party to the contract. Her husband is not liable for her torts. If he 
abandons her and leaves the State without providing for her maintenance, or is 
confined in the State prison, she may be authorized by the court to make contracts 
binding on him as well as herself. Husband has no curtesy in wife’s lands acquired 
since 1844, but has the use of one-third of her lands for life. If either husband or 
wife die intestate, leaving no issue, and the estate is solvent, the survivor has one- 
half of the real estate of the deceased for life 


MARYLAND. 

In Maryland, the property of a married woman, real and personal, whether 
acquired before marriage or after, is her separate property, and not liable for the 
debts of the husband; but no conveyance made to her by her husband in fraud of 
creditors is valid. Her personal earnings and the income thereof belong to her, 
and she may hold and dispose of the same in the same manner as though she were 
unmarried. The husband must join in her conveyance of real and personal estate, 
except as above, but she may devise the same by will, as though single. She may 
release dower by a separate deed, or jointly with her husband. She may insure 
her husband’s life, and on his death may receive the amount of insurance free from 
any claim of his legal representatives or creditors. The husband is not liable for 


MARRIED WOMEN. 


49 

the wife’s debts contracted before marriage. If a married woman die intestate, 
leaving children, her husband has a life estate in her property, real and personal; 
if she leave no children, he has a life estate in her real property, and her personal 
property vests in him absolutely. A married woman may make a will at the age of 
eighteen. 

MASSACHUSETTS. 

The real and personal property of a woman on her marriage remains her sepa¬ 
rate property; and a married woman may receive, receipt for, hold, manage, and 
dispose of property, real and personal, as if she were sole, except as hereinafter 
specified. She may make contracts as though she were sole, except with her hus¬ 
band. In the absence of express agreement, all work or labor performed by her is 
presumed to be on her separate account. Husband and wife cannot transfer prop¬ 
erty to one another, except that the wife may acquire by a gift from her husband 
as her separate property articles of personal use and adornment to a value of not 
more than two thousand dollars, provided such gift be not made in fraud of cred¬ 
itors. A married woman may be an executrix, administratrix, guardian, or trustee. 
She may make a will as though sole, except that such will shall not, without the 
husband’s written consent, deprive him of his tenancy by the curtesy in her real 
estate, or of more than one-half of her personal estate. She may sue and be sued 
as though sole. When a married woman proposes to do business on her separate 
account, she shall record in the clerk’s office of the town or city in which such busi¬ 
ness is to be carried on a certificate setting forth her name and that of her husband, 
the nature of the business and the place where it is to be carried on. When the 
nature of the business or place of carrying it on is changed, a new certificate shall 
be filed. If she fails to record such certificates her husband may do so. If such 
certificates be not recorded, the property employed in the business is liable to be 
attached as the property of the husband, and the husband is liable for contracts 
made in carrying on the business. With these exceptions, the husband is not liable 
for contracts made by the wife in reference to her separate property or business, 
nor is her property liable to be taken on execution against him. Dower is allowed 
in the husband’s real estate, as at common law, but if he leaves no children, the 
wife takes his real estate in fee, not exceeding five thousand dollars in value, and 
also has one-half for life of all other real estate of which he dies seized, unless, 
instead of such life estate, she elects to have her dower in his real estate other than 
that taken by her in fee. Curtesy as at common law, and if there were no children 
born alive of the marriage, he has one-half of her lands for life. If she die intestate 
and leave no issue then living, he takes her real estate in fee, not exceeding five 
thousand dollars in value, and also a life estate by curtesy in her other real estate, 
or by statute in one-half thereof. If he die intestate, leaving issue, the widow is 
entitled to one-third of the residue of the personal property; if no issue, to the 
whole of the residue to the amount of five thousand dollars, and to one-half of the 
excess of the residue above ten thousand dollars. If she die intestate, leaving 
issue, he takes one-half of her personal estate ; if no issue, the whole. 

MICHIGAN. 

In Michigan, all the real and personal estate of a married woman, whether 
acquired before marriage or after, is her separate property, free from liability for 
4 


MARRIED WOMEN. 


50 

her husband’s debts, and she may sell, convey, encumber, or otherwise dispose of 
the same, as if sole, and she may bequeath the same by will. She may carry on 
business in her own name, and may make contracts binding her separate estate, but 
only in reference to her own property and business. She cannot bind her separate 
estate by becoming surety for her husband, or other third person. She has the 
same right of dower as at common law, and may bar her right of dower by joining 
in her husband’s deed. Tenancy by the curtesy is abolished. 


MINNESOTA. 

In Minnesota, all property, real or personal, owned by any married woman at 
her marriage, or received afterwards, is her own, as if unmarried, and is free from 
the control of her husband, and is not liable for his debts. She may make any 
contract she could make if unmarried, and any transfer of her property, except that 
the husband must join in the deed of her realty, unless he have deserted her. 
Neither husband nor wife is liable for the debts or torts of the other, except that 
the husband is liable for necessaries furnished to the wife, as at common law. 
Either may be the agent of the other, or contract with the other, except as to the 
sale of real estate from one to the other. In case of desertion or divorce, the wife 
may be permitted to act with reference to her real property as if sole. A woman 
attains her majority at eighteen, but may join her husband in deeds of conveyance, 
though under age. Dower and curtesy are abolished. Surviving husband or wife 
is entitled to the homestead of the deceased for life, free from debts, and to one- 
third of the remaining real estate in fee, free from any testamentary or other dispo¬ 
sition not assented to in writing by the survivor, but subject to debts. 


MISSISSIPPI. 

In Mississippi, married women may acquire, hold, sell, bequeath, and in all other 
respects deal with their property, and may make all kinds of contracts free from 
any of the common law disabilities. Gifts and conveyances between husband and 
wife must, however, be in writing, acknowledged and recorded. Curtesy and dower 
are abolished. The surviving wife or husband takes an equal share with the chil¬ 
dren severally, and where there is no surviving issue, takes the whole property 
in fee. 


MISSOURI. 

The real estate of a married woman and the income therefrom are not subject to 
the husband’s debts, nor can he dispose of such estate unless she join with him in 
conveying it. But the annual products of her real estate are liable for necessaries 
for the family and improvements on such estate. She may devise her real and per¬ 
sonal estate, but not so as to affect his curtesy, and he cannot deprive her of her 
right to dower. All personal property acquired in any way by a married woman 
after March, 1875, is her separate property, free from her husband’s debts, except 
for necessaries for herself and family. She may sue and be sued in reference to 
such property without joining her husband. She may make contracts in her own 
name which will bind her separate property, real and personal. Her separate prop¬ 
erty, left to her by will before or after marriage, is not liable for her husband’s debts. 


MARRIED WOMEN. 


51 


MONTANA. 

In Montana, the property of a married woman, whether acquired before or 
after marriage, and the income thereof, is her separate property, and not liable for 
the debts of the husband, except for necessaries for herself and children under 
eighteen years of age. A list of such property must be recorded with the recorder 
of deeds. A married woman may become a sole trader by acknowledging and 
recording with the county recorder of deeds a statement of her intention so to do, 
and of the nature of the business she intends to transact. The husband is not lia¬ 
ble for debts contracted in such business. Curtesy and dower are abolished. The 
surviving husband or wife has one-half of the property of the other in fee, if there 
are no children, if there are children, one-third. On the death of the wife, the 
entire community property (see law of California) belongs to the husband without 
administration. On the death of the husband, one-half of the community property 
goes to the wife, the other half being subject to his testamentary disposition. A 
married woman over eighteen years of age may dispose by will of any property 
held by her in her own right. 


NEBRASKA. 

In Nebraska, all the property, real or personal, of a married woman, coming 
to her either before or after marriage, except by gift from her husband, and all the 
rents and profits thereof, are her sole and separate property, and may be managed 
by her alone, without interference by her husband, and they are not liable for his 
debts. She may convey or make any contract in reference to it that a married man 
may make as to his property; may sue and be sued, and carry on any business; 
and her earnings are her own. She may make a will; is not liable for her hus¬ 
band’s debts; property of the husband is not liable for her debts. She must join 
with husband in conveyance or encumbrance of homestead. Women attain their 
majority at sixteen if married, otherwise at eighteen. 

NEVADA. 

In Nevada, all property of the wife, real or personal, held at marriage, or 
afterwards acquired by gift, bequest, devise, or descent, is her separate property; 
and all the husband’s so held or acquired is his separate property. All property 
acquired otherwise by either party, after marriage, is common property. An inven¬ 
tory of her property must be made and recorded. She may manage and dispose of 
her separate property without his consent. During the marriage, the husband has 
the exclusive control and management of the common property, and may sell and 
dispose of the same as his own. At her death, if he survive her, all of the com¬ 
mon property goes to him. If she survive him, at his death half of the common 
property goes to her; and in case of no testamentary disposition and no issue, she 
takes the whole. Dower and curtesy are abolished. The separate property of the 
wife is liable for her antenuptial debts, but his is not. Marriage contracts, duly 
executed and recorded, may vary these rights and interests. Married women may 
carry on and transact business under their own name, under certain regulations. 
Her earnings are not liable for her husband’s debts; they may contract together; 
she may sue and be sued alone, if living separate. 


52 


MARRIED WOMEN. 


NEW HAMPSHIRE. 

In New Hampshire, a married woman may hold real or personal estate, and 
convey, sell, devise, and bequeath the same as freely as if sole. She is entitled to 
the absolute control of her own earnings, and is not liable for the debts of the hus¬ 
band. She may make contracts in her own name, buy goods, give notes, and trans¬ 
act any business whatever, as if sole, and bind her own property, in the course of 
such business, for her own benefit, and without the intervention of the husband; 
but she is not liable as surety for her husband, or in any undertaking in his behalf. 
He is not liable for her debts contracted before marriage. Husband cannot convey 
real estate to the wife. In case of desertion, or when the husband is a spendthrift, 
insane, or under guardianship, the wife has all the rights of a feme sole. A married 
woman may make a will. 


NEW JERSEY. 

Property owned by a woman at the time of her marriage, or afterwards acquired 
by gift, grant, descent, devise, or bequest, and the income therefrom, is her separate 
property, not subject to the disposal of her husband, or liable for his debts. She 
may bind herself by contract in the same manner as though unmarried, and may 
sue and be sued on such contracts without her husband, but she cannot be an 
accommodation endorser or a surety, nor is she liable, on any premise, to answer 
for the debt or default of any other person. She cannot convey or encumber real 
estate without her husband. Her separate property is not liable for debts con¬ 
tracted for the support of herself or family as her husband’s agent, nor is she liable 
for family expenses, except by express contract in her own name. When a man 
refuses or neglects to support his wife, and she lives separate from him, she may, 
by order of court, sell, mortgage, or lease her lands, and may sue her husband in 
all matters relating to her separate property, as though unmarried. A married 
woman may make a will, but cannot defeat her husband’s rights in her real estate. 

NEW MEXICO. 

All property owned by any woman at the time of her marriage, or afterwards 
received, is her private property, and is free from liability for her husband’s debts. 
Her separate estate is liable both for her torts and contracts. Neither husband or 
wife is liable for the contracts of the other, except those made after marriage for 
necessaries furnished to either or to their children. The husband must join in 
conveyances of the wife’s real estate. He has the control and management of his 
wife’s property, and the proceeds become their joint property. On the death of 
the husband, the widow in the first place receives her private property, to secure 
which she has a lien prior to other creditors. After paying off debts and deducting 
the husband’s private estate, the remainder of the property is divided equally 
between the husband’s estate and the wife, this being termed “ acquest property,” 
and belonging equally to the two. If the husband dies without issue, the whole 
of the acquest property goes to the wife. A married woman may make a will. 


MARRIED WOMEN. 


53 


NEW YORK. 

The real and personal property of any woman acquired before or after marriage 
remains her separate property, not liable for her husband’s debts. She may take 
property from any source except her husband. Marriage contracts are allowed. 
She may carry on a trade or business on her separate account, may manage 
her property and business free from the control of her husband, and may 
dispose of her real or personal estate. Her bargains do not bind her husband. 
She may sue and be sued in regard to her person or separate property. Her hus¬ 
band is liable for her antenuptial debts to the extent of the assets received from 
her. She may insure his life for her benefit, provided the premium does not exceed 
five hundred dollars. She may hold patents for her inventions, and may vote on 
stock held by her. She may be a guardian, executrix, or administratrix, and may 
give the necessary bonds. She may make a will. She may make a power of attor¬ 
ney, as if single. 


NORTH CAROLINA. 

All the property, real and personal, of a married woman, whether acquired 
before or after marriage, is her separate property, and is not liable for the debts or 
obligations of her husband. Marriage settlements are invalid as against creditors 
existing at the time of the making the same. Her husband is not liable for her 
debts, contracts, or wrongs made or committed before marriage. She cannot make 
contracts without her husband’s written consent, except for necessary personal 
expenses, or for the support of the family, or in payment of antenuptial debts, 
unless she is a free-trader. A wife abandoned by her husband may contract and 
bind her separate estate. The savings from the income of the separate property of 
the wife belong to her. She may make a will, provided she do not deprive her 
husband of his curtesy, and may convey her property with his written consent. She 
may insure his life for her benefit, if the premium do not exceed three hundred 
dollars. 


OHIO. 

All property, real or personal, belonging to a woman at her marriage, or after¬ 
wards acquired by conveyance, gift, devise, or inheritance, or by purchase with her 
separate money or means, or due as wages of her personal labor, or growing out of 
any violation of her personal rights, together with the income therefrom, is her sep¬ 
arate property, is under her sole control, and not liable for any debts of her hus¬ 
band. She may sue and be sued in her own name, and may contract in the same 
manner and to the same extent as though unmarried. A married woman whose 
husband deserts her, or, from intemperance or other cause, neglects to provide for 
his family, may, in her own name, contract for the labor of herself and her minor 
children, and collect the earnings thereof, and may, by application to the court of 
common pleas, be vested with the rights and obligations of head of a family as to 
the care and control of minor children and the disposition of her real property, free 
from the curtesy of her husband. A married woman may make a will. Women 
attain their majority at the age of eighteen. The husband is not liable for the 
wife’s contracts or torts. 


54 


MARRIED WOMEN. 


OREGON. 

The property of a married woman, whether acquired before marriage or after, is 
her separate property, and is not liable for the debts of the husband. She may 
manage, sell, convey, or devise the same by will, to the same extent and in the same 
manner that her husband can property belonging to him. Husband and wife may 
convey property to one another. Neither is liable for the contracts of the other. 
By special statute, all civil disabilities" which are not imposed upon the husband 
are removed from the wife, except the right to vote and hold office. Women attain 
their majority at eighteen, or on marriage. Dower as at common law. 


PENNSYLVANIA. 

The separate property of a married woman is not liable for her husband’s debts, 
bift it may be charged for debts contracted by herself for necessaries furnished for 
the support of her family. As a rule, she cannot make a valid contract, except for 
necessaries and sewing machines. Her promissory note is not binding. She can¬ 
not sell or convey her estate without her husband’s consent and joining in the deed, 
which must be also separately acknowledged by her. She may make a will subject 
to her husband’s right of curtesy. She may give a refunding bond for a legacy or 
share of a decedent’s estate, may transfer railroad stock, the loans of the State or 
of the city of Philadelphia, or the loans or stock of any corporation created under 
the laws of the State, and may keep a bank account and draw checks thereon with¬ 
out the consent of her husband. She may also sell, assign, transfer, or satisfy a 
mortgage or judgment, may be an incorporator or officer of an association incor¬ 
porated for purposes of learning, benevolence, charity, or religion, and may hold 
stock in any saving-fund, building or loan association with the same rights and 
privileges as other members. Her earnings belong to her husband, but she may 
secure them to herself by petition to the court of common pleas, in which case, if 
she engage in business, she is liable on her contracts. If her husband deserts or 
neglects to support her, she may be declared a feme sole trader, and may then con¬ 
tract, sue and be sued, without joining her husband, and her property is subject to 
her absolute disposal. 


RHODE ISLAND. 

The property of a married woman, whether acquired before or after marriage, 
including that acquired by her own industry, together with the income from the 
same, is not liable for her husband’s debts, and on his death remains her sole and 
separate property. Her chattels real, furniture, plate, jewels, shares in an incor¬ 
porated company, money deposited in a savings bank, or debts due her and secured 
by mortgage, may be transferred by the joint deed of herself and husband. All 
other personal estate she may dispose of as though unmarried, but she cannot 
transact business as a trader, or bind herself by promissory note. She may dispose 
of her property by will, but not so as to impair her husband’s curtesy. Her sepa¬ 
rate property is not liable for the expenses of the family, or for the support of her¬ 
self or children. A married woman coming from another State whose husband has 
never lived with her in the State, after a year’s continuous residence, may transact 
business, make contracts, dispose of property acquired by her, and have the cus¬ 
tody of her minor children. 


MARRIED WOMEN. 


55 


SOUTH CAROLINA. 

In South Carolina, the real and personal property of a married woman, 
whether held by her at the time of the marriage, or accrued to her thereafter in any 
way, shall be her separate property, and not subject to levy or sale for her husband’s 
debts. She may bequeath, devise, or convey her separate property, as if unmar¬ 
ried ; and, if she die intestate, her property shall descend in the same manner as is 
provided for the property of husband. She may purchase any property, and con¬ 
tract in reference to it, as if unmarried. Her husband is not liable for her debts 
contracted before marriage, nor for those contracted after, except for her necessary 
support. When the action concerns her separate property, she may sue and be 
sued alone. And judgment may be entered against her separately, and execution 
be levied on her separate property. Tenancy by the curtesy is abolished. 

TENNESSEE. 

The husband’s interest in his wife’s lands cannot be taken by legal process for 
his debts, nor can he sell it unless she join in the deed. Personal property of the 
wife is exempt from liability for her husband’s debts contracted before marriage. 
Otherwise, her general personal property, whether acquired before marriage or 
after becomes, after being reduced to possession by the husband, his property, and 
is subject to his debts, contracts, and disposition as his own, but property owned by 
her at marriage or afterwards acquired by devise or descent is liable first to her 
creditors. He is not liable for her antenuptial contracts. Her separate property is 
not liable for his debts, otherwise than as authorized in the instrument under which 
she acquired it. She cannot contract to sell her real estate, but may convey it 
jointly with her husband on private examination, and may convey without him, 
subject to his curtesy. If living apart from her husband, she may dispose of her 
lands as an unmarried woman. Her separate property she can dispose of by deed 
or will, as though unmarried, unless the power of disposition is expressly withheld. 
Her separate property is not liable for her support or that of her children, unless 
she expressly consent. Generally, the wife, as at common law, has no power to 
bind herself or her property by contract, and she cannot do business as a feme sole. 
If husband or wife effect insurance on his life, upon his death the money goes to 
his wife and children, free from his debts. 

TEXAS. 

In Texas, the marriage of a female minor gives her all the right she would have 
if of age. All property acquired by either party before marriage, or by gift, devise, 
or descent afterwards, is the separate property of each, but the husband has the 
management of the whole. Property acquired by either during marriage, in other 
ways, is common; the husband may dispose of it during coverture, and it is liable 
for his debts, and for her debts contracted for necessaries. If there are no children, 
the whole goes to the survivor, otherwise one-half. The parties may be jointly 
sued on contracts of the wife for necessaries and for expenses benefiting her sepa¬ 
rate estate. Execution may be levied on common property, or, if there be none, on 
her separate property. Marriage agreements must be made before a notary, and 
may be acknowledged by a minor, with the parent’s or guardian’s consent, and are 
unalterable after marriage. A reservation of property therein to be good must be 


MARRIED WOMEN. 


56 

recorded. Husband and wife may sue jointly and separately for her effects. The 
wife acts jointly with her husband when she is appointed executrix or administra¬ 
trix. On the death of either, the survivor takes the common property, subject to 
its debts, nor is it necessary for the husband to administer on such property on her 
death, as he has the same control of it then that he had in her lifetime. In case of 
his death, she has the same control till she marries, when it will be subject to 
administration. Dower is abolished. Husband may fill antecedent contracts, and 
be compelled to give bonds for the proper management of the common property. 
Her separate property is not chargeable with necessaries procured for him. The 
common property is liable for all debts contracted during marriage. A married 
woman cannot contract as a partner in business, or embark her separate means in 
trade. 


UTAH. 

All property owned by either husband or wife, whether acquired before or after 
marriage, is separate property, and may be held and disposed of without limitation 
or restriction by reason of coverture. A married woman may carry on business 
with her separate property, and her notes and contracts in reference to such busi¬ 
ness are binding on her. She may make a will, as if sole. Dower is abolished. 


VERMONT. 

The real estate of a married woman, and the rents, issues, and products thereof, 
and, during coverture, her husband’s interest in the same, cannot be levied upon for 
the sole debts of the husband, except that such annual products may be taken for 
debts created for necessaries for his wife and family, or for labor or materials fur¬ 
nished upon, or for cultivation or improvement of such real estate. A married 
woman’s separate property, whether acquired before or after marriage, is not liable 
for her husband’s debts, or for debts contracted for the support of herself or chil¬ 
dren. All personal property acquired by a married woman during coverture by 
inheritance or distribution is held to her sole and separate use. Her earnings are 
not subject to attachment by trustee process for her husband’s debts. The hus¬ 
band must join in conveyances of her real estate. Dower is allowed only in real 
estate of which the husband died seized. Ordinarily, a married woman can make 
no contracts, but if she carries on business in her own name, she may sue or be sued 
in all matters connected therewith, and her separate estate is liable for her con¬ 
tracts. Females become of age at eighteen. A married woman may dispose of her 
property, real and personal, by will. 


VIRGINIA. 

Prior to 1874, the property of the husband was liable for the antenuptial debts 
of the wife, and the personal property of the wife became the property of the hus¬ 
band. He was also entitled to the rents and profits of her real estate during their 
joint lives. By the act of 1874, each was relieved from liability for the antenuptial 
debts of the other. By act of 1877, as subsequently amended, it is provided that 
the property, real or personal, of any female who may thereafter marry, and the 
rents and profits thereof, and any property acquired by a married woman as a sepa- 


MARRIED WOMEN. 


67 


rate and sole trader, and any property thereafter acquired by any married woman, 
whenever married, shall be her sole and separate property, not subject to the dis¬ 
posal of the husband, or liable for his debts. She may contract in relation thereto, 
and may sue and be sued, but her husband must join in any contract in reference to 
her property, other than that acquired by her as a sole trader. She may devise and 
bequeath her property as though unmarried, but cannot deprive her husband of his 
estate by the curtesy. If the husband refuse or be incompetent to unite in the con¬ 
veyance of the wife’s property, she may, by filing a bill in equity, obtain a decree 
for the conveyance thereof. 

WASHINGTON TERRITORY. 

All property, real and personal, owned by the husband or wife before marriage, 
and that acquired afterwards by gift, devise, or descent, is separate property. All 
property acquired during marriage, except by gift, devise, or descent, is their 
common property. The husband has the management and control of the com¬ 
munity property, and may dispose of the personal property, but cannot sell 
or encumber the real estate unless the wife joins. A married woman may con¬ 
tract, and sue and be sued, as though unmarried. All laws imposing civil dis¬ 
abilities on the wife which are not imposed also upon the husband are abolished. 
The rights of both parents to the care and custody of children are equal. Dower 
and curtesy are abolished. Women are entitled to vote, and to all rights of citizen¬ 
ship. A woman may make a will at the age of eighteen. 


WEST VIRGINIA. 

In West Virginia, the real and personal property of a married woman is 
secured to her separate use, free from the control or debts of her husband. If liv¬ 
ing separate and apart from her husband, she may convey her property, otherwise 
her husband must join in the deed. She may insure her husband’s life for her own 
benefit, provided the premium does not exceed one hundred and fifty dollars. She 
may hold and enjoy patents for her inventions; may make deposits in the bank; 
may hold stock in corporations, and vote on the same. Her husband is liable for 
her debts contracted before marriage only to the extent of the property received by 
him through her. She may sue and be sued alone in regard to her separate estate, 
or in suits between herself and her husband, or when she is living separate and 
apart from him; and she may be a feme sole trader, if living apart from him. She 
may make a will. 


WISCONSIN. 

The real and personal property of the wife at the time of marriage, and the 
income thereof, and any which she may receive by inheritance, gift, grant, devise, 
or bequest from any person other than her husband, is her separate property, not 
subject to the disposal of the husband, or liable for his debts. She may convey her 
property, real or personal, as if unmarried, and her husband need not join in her 
deed, but will, notwithstanding, be barred of any right of curtesy. A deed or mort¬ 
gage of the homestead is void without her signature. The wife’s individual earn¬ 
ings are her separate property. A policy of insurance for the benefit of a married 
woman inures to her sole and separate use and that of her children. Her separate 


58 . 


MARRIED WOMEN. 


estate is liable for debts contracted by her on its credit, but is not liable for family 
expenses, except by express contract. She may dispose of her separate estate in 
all respects as an unmarried woman, and may deal with her husband in reference 
to such estate in the same manner as with a stranger. 

WYOMING. 

The rights of a married woman in respect to her property are nearly the same 
as though she were unmarried. She may make a will, sue and be sued, make con¬ 
tracts, carry on business, retain her own earnings, hold and convey property, real 
and personal, free from the control or interference of her husband, and from liabil¬ 
ity for his debts. She may hold office and vote at elections. She cannot, however, 
be appointed administratrix. Dower and curtesy are abolished. 

CANADA. 

In the provinces of the Dominion, generally, a married woman holds all her 
property and earnings free from the control of her husband. It is liable for her 
debts before marriage, and her husband is not. She may manage it and bequeath 
it. She is entitled to dower, but there is no tenancy by curtesy. In the Province 
of Quebec the law is modified by the French law. There all the personal property 
and gains of both parties are put together, and form the community property, which 
the husband administers. Each can bequeath only his or her interest, and the 
heirs of each inherit the interest of each. 


MARRIED WOMEN. 


59 


It should be added, that the wife may everywhere even by 
common law be the agent of the husband, and transact for him 
his business transactions, making, accepting, or indorsing bills 
or notes, purchasing goods, rendering bills, collecting money 
and receipting for it, and in general entering into any contract 
so as to bind him, if she has his authority to do so. And while 
they continue to live together, the law considers the wife as 
clothed with authority by the husband to buy for him and his 
family all things necessary in kind and quantity for the proper 
support of his family; and for such purchases made by her, he 
is liable. 

The husband is responsible for necessaries supplied to his 
wife, if he does not supply them himself. And he continues 
so liable if he turns her out of his house, or otherwise separates 
himself from her, without good cause. But he is not so liable 
if she deserts him (unless on extreme provocation), or if he 
turns her away for good cause. 

If she leaves him because he treats her so ill that she has 
good right to go from him and his house, this is the same thing 
as turning her away; and she carries with her his credit for all 
necessaries supplied to her. But what the misconduct must be 
to give this right, is uncertain. Some English cases are very 
severe on this point. In one, a husband brought a prostitute 
into his house, and confined his wife to her own room under 
pretence of her insanity. But the court held this to be insuffi¬ 
cient. The Supreme Court of New York, in commenting upon 
this case, said that “the doctrine contained in it cannot be law 
in a Christian country.” In America the law must be, and 
undoubtedly is, that the wife is not obliged to stay and endure 
cruelty or indecency. 

It may be added, that if a man lives with a woman as his 
wife, and represents her to be so, he is liable for necessaries 
supplied to her, and for her contracts, in the same way as if she 
were his wife; and this even to one who knows that she is not 
his wife. 

The statutes of which we have given an abstract are intended 
to secure to a married woman all her rights. But in all parts 


6o 


MARRIED WOMEN. 


of this country, women about to marry—or their friends for 
them—often wish to secure to them certain powers and rights, 
and to limit these in certain ways, or to make sure that their 
property is in safe and skilful hands. This can only be done by 
conveying and transferring the property to Trustees; that is, 
to certain persons to hold the same in trust. This is done by a 
legal instrument, which is almost always an Indenture; by 
which is meant an instrument under seal between two or more 
parties. This instrument must set forth precisely, and with 
legal accuracy, just what the trust is; that is to say, just what 
the trustees, or the woman, or her husband may do, and just 
what they must do. This is one of those instruments which 
require peculiar care and exactness. We give as models, or 
forms, two, differing in their terms and purposes. Both were 
drawn by very skilful lawyers, and with such changes, of 
omission or addition or alteration, as the circumstances of any 
case or the wishes of the parties make necessary, will be useful 
and safe guides in the preparation of such instruments. 

( 4 .) 

An Indenture to put in Trust the Property of an Unmarried 

Woman, 

This Indenture of two parts, made and concluded this day of 
, A.D. eighteen hundred and , by and between 

of , single woman, of the first part, and , and 

, of , of the second part, 

Witnesseth, That the said party of the first part is seized and possessed 
of certain real and personal estate, to wit, one undivided moiety of the 
reversion in and of a messuage and land in , bounded as follows: 

a mortgage of a lot of land bounded on Street, and described in the 

deed of to , which is recorded in the Registry 

of Deeds, lib. , fol. ; a mortgage of a lot of land bounded on 
Street, and described in the deed of , recorded in 

the said Registry, lib. , fol. ; a mortgage of two lots of land 

bounded on Street, and described in the deed of to , 

recorded in the said Registry, lib. , fol. ; a mortgage of a lot of 

land bounded on Street, and described in the deed of to 

recorded in the Registry aforesaid, lib. , fol. ; one hundred shares 
in the capital stock of the Bank in ; twenty-five shares in 

the capital stock of the Bank in ; and fifty shares in the 


MARRIED WOMEN. 


6 1 


capital stock of the Bank of ; also a note of hand signed by the 

sa id , for the sum of fifteen thousand dollars; a note of hand 

signed by the said , for the sum of three thousand dollars; a note 

of hand signed by and , for the sum of two thousand 

five hundred dollars; a note of hand signed by , for the sum of 

six thousand dollars, which notes are severally secured by the lands and 
tenements, mortgaged as aforesaid; also a note of hand signed by 
for the sum of. one thousand dollars. 

All which real and personal estate the said party of the first part is 
desirous that the party of the second part should have and hold in trust for 
certain uses and purposes hereinafter set forth and expressed ; and in con¬ 
formity with said intention, and for the purpose of carrying the same into 
effect, the said party of the first part, in consideration of the sum of five 
dollars paid to her by the party of the second part, the receipt of which she 
doth hereby acknowledge, and for divers other good considerations moving 
her thereto, hath given, granted, sold, and conveyed, and doth give, grant, 
bargain, sell, and convey, all the said lands, tenements, and real estate, and 
doth hereby bargain, sell, transfer, assign, and set over all the aforesaid 
chattels and personal estate, as the same are above specified and described, 
unto the said and , and their heirs and assigns. To 

have and to hold the said granted premises unto the said and 

, and their heirs and assigns, and to the survivor of them and 
his heirs and assigns forever to their own use, but in trust nevertheless for 
the purposes, objects, and intents hereinafter set forth and expressed, and 
for none other, namely : 

First , That the said trustees and their successors in the said trust shall 
permit the said party of the first part, without any hindrance or interference 
by them, so long as she shall remain sole and unmarried, and shall see fit so 
to do, to receive and take in her proper person, or by her agent or attorney, 
the rents, income, dividends, interest, and profits of the said trust estate, 
real and personal, without any accountability therefor, to them the said 
parties of the second part; but if required by her, the said party of the first 
part, so to do, the said trustees and their successors shall collect and receive 
the said rents, income, and profits of the trust estate, and shall from time to 
time pay over the same unto the said party of the first part for her own use. 

Secondly , That from and after the solemnization of the marriage of the 
said party of the first part, whenever that event may take place, the said 
trustees and their successors shall collect, take, and receive all the rents, 
income, and profits of the trust estate, real and personal, and shall from 
time to time pay over the same to the said party of the first part, to and 
upon her separate order or receipt, made and signed by her, at or about the 
time of such payments respectively, and for her proper use, free from the 
control or interference of any husband she may have. 

Thirdly , That at and after the decease of said party of the first part, the 
said trustees and their successors shall be seized and possessed of the said 


62 


MARRIED WOMEN. 


trust estate to and for the use of such person or persons as the said party of 
the first part, by any last will and testament, duly executed, if she die sole 
and unmarried, or, in case she be at her decease a married woman, by 
any paper writing signed by her in presence of two or more credible 
witnesses, shall order, and appoint to take, receive, and hold the same, and 
in such shares and manner, and upon such terms and conditions, as she 
shall direct, order, and appoint as aforesaid ; and in case the said party of 
the first part shall omit to make any such will or testamentary appointment, 
then the said trustees and their successors shall hold the trust estate to the 
use of such person or persons as by the laws of this Commonwealth would, 
in case the party of the first part had died seized and possessed of the then 
existing trust property in her own right, have been entitled to the same as 
heirs-at-law, or distributees; provided always, that in such case the husband 
of the said party of the first part, if she leave a husband, shall be entitled 
to his life estate in all the real estate, as if he were tenant by the curtesy in 
and of the same, and be subject to all the duties incident to a tenant by the 
curtesy. 

Fourthly , That the said trustees and their successors shall keep the said 
trust estate, real and personal, constantly invested in the most safe and 
profitable manner in their power, but relying always on their discretion in 
this behalf, and shall accordingly have power to sell and dispose of any of 
the said trust estate, and to make -and pass all necessary deeds and instru¬ 
ments of conveyance thereof, and to purchase any other estate, real of 
personal and the same to sell again, and so from time to time to change the 
property composing the trust fund and estate; provided always, that all real 
and personal estate which may be purchased by them the said trustees with 
the trust moneys, or the proceeds of sale of the trust property, shall be 
conveyed and assigned to them and their successors as trustees as aforesaid, 
and shall be holden always upon the same trusts, and with the same powers, 
and for the same purposes, as are set forth and declared in this indenture of 
and concerning the estate firstly above described and conveyed to the said 
trustees. 

Fifthly , That the said trustees or their successors, in case the said party 
of the first part shall so order and direct, shall invest the trust money or 
estate, or such part thereof as they shall be ordered as aforesaid, in the 
purchase of such house for the habitation and dwelling of the said party of 
the first part as she may select, and shall lay out and expend such other 
part of the said trust money and estate as she, the said party, shall order 
and direct, in the purchase of such furniture, plate, horses, and equipages, 
as she may choose and select for her own use ; and shall permit her, the 
said party of the first part, with any husband she may have, to occupy and 
inhabit the said house, and to use and enjoy the said furniture, plate, 
carriages, and horses without impeachment of waste, and without any 
accountability to them the said trustees for the reasonable wear and use 
thereof, or injury by casualty; and the trustees shall keep the said house 


MARRIED WOMEN. 


63 

and furniture insured against fire, and, in case of loss or injury by fire, shall 
lay out and expend the money which they may receive from the assurers, in 
the repairing or rebuilding of the said house, if so directed by the said 
party of the first part, and in the purchase of other and new furniture, plate, 
horses, and equipages in place of those which have been injured or destroyed 
by fire, and shall permit the said party of the first part to use and enjoy the 
same in manner aforesaid. And the said trustees and their successors shall, 
when required by the said party of the first part so to do, sell and dispose 
of any house which may have been purchased by them for the personal 
occupation and habitation of the said party of the first part, and shall in 
manner aforesaid lay out the proceeds of sale of such house, and such other 
moneys as she shall direct, in the purchase of such other house as she shall 
select and direct them to purchase, and shall permit her to occupy the same 
in manner above set forth and expressed; and they shall also, when directed 
by the said party of the first part, sell and dispose of any of the furniture 
and other chattels, so as aforesaid, purchased by them for her use, and shall 
from time to time lay out and expend the proceeds of such sales and such 
other sums of money as they shall be directed by the said party of the first 
part to do, in the purchase of such other furniture, plate, horses, and 
equipages as she shall select for her own use; and shall permit her to use 
and enjoy the same in manner aforesaid; provided always, that in case of 
any attempt by any person to sell or remove the said furniture or other 
chattels out of the personal care and custody of the party of the first part, 
without the consent of the trustees, they shall forthwith take possession 
thereof, and convert the chattels so attempted to be removed or sold, into 
money, and shall hold the said money upon the trusts and for the uses set 
forth in this indenture ; and in all the cases in which any order or direction 
shall be given by the said party of the first part it shall be in writing, and 
be signed by her in presence of one witness at least. 

Sixthly , That in case of the decease of the said trustees, or either of 
them, others shall be nominated by the party of the first part (if she see fit 
so to do), to be appointed as trustees in the place of the deceased; and 
upon such nomination being made and notified to the surviving trustee, he 
shall forthwith, if such person be suitable, make and execute all such instru¬ 
ments in the law as shall be needful in the opinion of counsel, to associate 
such person in the said trust, and to transfer and convey to him the same 
interest in the trust estate, with the same powers over the same, and subject 
to the same duties, as are vested in and assumed by the parties of the second 
part in and by this instrument and the laws of the land. And in case either 
of the said trustees, the parties of the second part, or their successors, shall 
wish to resign said trust, they shall be at liberty to do so, first giving reason¬ 
able notice to the party of the first part, that she may find some suitable 
person, who shall be acceptable to the remaining trustee, to assume the said 
trust in place of the trustee resigning; and the same proceedings shall then 
be had for the introduction and appointment of a new trustee as are above 


64 


MARRIED WOMEN. 


provided in case of the decease of a trustee ; and in case of the decease or 
resignation at any time of any of the persons who may be hereafter 
appointed trustees, in manner aforesaid, similar proceedings shall be had for 
supplying the vacancy created by such decease or resignation. And the 
trust fund, property, and estate shall always be had and held by the persons 
so appointed from time to time in trust for the uses and purposes set forth 
in this indenture, and none other. And all nominations made as aforesaid 
shall be in writing, 

Seventhly , That the purchasers of any estate, real or personal, which 
may be sold and conveyed by the trustees under this indenture, shall not be 
bound to see to the application of the purchase-money; but the receipt and 
acquittance of the trustees shall be a full and adequate discharge to such 
purchasers for such purchase-money. 

Eighthly , That all the expenses and incidental charges of the trustees 
shall be deducted from the income of the trust property, as well as a 
reasonable allowance to the trustees for their own services. 

Ninthly , That the resignation of any trustee shall not be, nor be pleaded 
as, a bar to the chancery jurisdiction of the courts of the Commonwealth, 
in case a resort against such trustee to the said court shall be necessary. 

Tenthly , That the trustees under this indenture, each for himself and 
not for each other, shall be responsible for the want of due diligence only in 
the execution of the said trusts, and for their wilful defaults, and in case of 
the omission by the party of the first part to nominate a successor to either 
of the parties of the second part, or to any person appointed instead of them, 
or either of them who may resign or decease, the surviving or continuing 
trustee shall have power and authority to execute all the trusts herein 
specified and declared, in as ample manner as both the said parties of the 
second part might jointly have done. 

In Testimony Whereof, The said and hereto 

set their hands and seals, the day and year first above written. 

( Signatures .) {Seals.) 

Signed\ Sealed,\ and Delivered in Presence of 
( Witnesses .) 


May 18 

Then the within-named acknowledged this instrument to be 

his free act and deed before me. 

(Signed) Justice of the Peace. 


( 5 .) 

Another Form of Indenture in Trust, for Property of 
Unmarried Women. 

This Indenture, Made and concluded this day of , in the 

year of our Lord one thousand eight hundred and , by and between 

, of in the county of , single woman, of the one part, 


MARRIED WOMEN. 


65 

an d of said the father of the said , of the other 

part: Witnesseth, 

Whereas the said is seized and possessed in her own right, 

of the following-described real estate ; 

and is also seized and possessed of a certain piece of land, 
situate in said ; with the buildings thereon standing, and privileges 

and appurtenances thereto belonging; the whole of which were conveyed by 
to , by deed bearing date the of , in 

the year of our Lord one thousand eight hundred , and recorded 

in the Registry of Deeds for said county, lib. , fol. . And 

whereas the said is possessed of the following personal estate : 

to wit, of shares, of the capital stock, of the Bank 

in , and is also possessed of the promissory note of 

for the sum of dollars, dated and payable ; 

and also of the bond of , and , dated the day of 

, in the year of our Lord one thousand eight hundred and , 

conditioned for the payment of dollars and interest. And 

whereas she, the said , is desirous of securing the said estate, 

both real and personal, in the event of her marriage, to her sole use and 
benefit; and for this purpose it hath been agreed, that all the estate and 
property aforesaid shall be granted, assigned, and transferred unto the said 
, and to such other trustee as shall hereafter be appointed accord¬ 
ing to the provisions hereinafter expressed, to be held in trust by them for 
the separate and sole use and benefit of her, the said , and her 

heirs (notwithstanding any such coverture), upon the terms and conditions, 
for the uses, intents, and purposes, under the limitations, and for and during 
the time, as hereinafter is expressed. 

Now, this indenture witnesseth, that the said , in consideration 

of the premises, and of the covenants hereinafter contained, and also of 
one dollar now paid to her by the said , the receipt whereof is 

hereby acknowledged, hath granted, bargained, sold, and transferred, and 
by these presents doth grant, bargain, sell, and transfer, unto the said 

, his heirs and assigns, forever, all the real and personal estate, stocks, 
notes, and bond, hereinbefore described and specified: 

To have and to hold the same to him, the said , his heirs and 

assigns, forever, to and for the several uses, trusts, and purposes, and 
subject to the several provisions, limitations, powers, and agreements, 
hereinafter limited, declared, and expressed; that is to say, to the sole use 
and behoof of the said and her heirs until the solemnization of 

any such marriage, and, from and immediately afterwards, to and for the 
following uses, intents, and purposes, to wit: 

That the said estate, both real and personal, stocks, notes, and bond, 
shall be held, by him, the said and his successor in said trust 

in the manner hereinafter expressed and provided, to the sole use and 
separate benefit of her the said , without being liable to the 

debts, incumbrances, or control of any husband she may have during the 

5 


66 


MARRIED WOMEN. 


existence and continuance of said trust; that said shall, from time 

to time, lease and demise said real estate to the best profit and advantage, 
and, at such time as he shall see fit and think proper, sell and dispose of all 
or any part of said real estate, upon the most advantageous terms, for the 
interest of said , and shall invest the proceeds ; and, upon pay¬ 

ment of the stocks, notes, or bond aforesaid, invest the same in like manner; 
that he shall pay all the rents and profits of said real estate, and the interest 
and income of said funds, and also the interest and income of said personal 
property hereby assigned, and all the net profits arising and accruing there¬ 
from, as well as such portion of the principal as he shall judge necessary 
for her convenience and support, unto her, the , or to such person 

or persons as she shall in writing, without the signature or interference of 
any husband, appoint, for and during the natural life of her, the said 

, that is to say, for and during the term for which said trust 

shall continue, according to the provisions and limitations hereinafter ex¬ 
pressed; and, after the decease of the said , the remaining income 

and profit unpaid, to the child or children of the said , if she shall 

leave any; and, upon such decease, grant, convey, and transfer the same 
estate, both real and personal, and any investments in funds, unto such child 
or children, his and their heirs and assigns, forever; and also grant and con¬ 
vey, in like manner, any real estate which may be purchased with the pro¬ 
ceeds of said property; and in case the said should die without 

issue, then to grant, convey, and transfer the same, in like manner, unto the 
heirs-at-law of her the said 

And the said , for himself, his heirs, executors, and adminis¬ 
trators, doth covenant, grant, and agree, to and with the said , her 

executors and administrators, that in case she, the said , should 

desire any real estate to be purchased with any part of said capital stock, 
funds, or interest, of the estate and property hereby conveyed, and it should 
be deemed advantageous and proper by the said to comply there¬ 

with, then he will make a purchase thereof, and take deeds of conveyance 
of such estate in his name, as trustee, and will hold the same subject to the 
like trusts, limitations, powers, and agreements as are herein limited, declared, 
and expressed; and will pay over the rents and income thereof as is above 
provided, unless she, the said , shall choose to occupy and live on 

the same; and, in such case, no rents shall be exacted or required of any 
husband of the said . And upon the happening of the death of 

him, the said , he doth further covenant that his heirs or executors 

or administrators shall and will, as soon as practicable thereafter, make good 
and sufficient instruments of conveyance to transfer and grant the aforesaid 
estate, both real and personal, or such parts thereof as shall then remain 
undisposed of, and such as may be purchased by him, said , in 

pursuance of the trusts and intent of this indenture, unto such person as 
shall be appointed the trustee of the said for that purpose by the 

Judge of Probate for the District of for the time being, who is, in 

that event, authorized to make the appointment. 


THE LEGAL MEAJV/NG OF AGREEMENT. 

In Witness Whereof, The said parties have hereto interchangeably 
set their hands and seals, the day and year first above written. 

(Signatures.) (Seats.) 
Signed, Sealed, and Delivered in Presence of 
( Witness.) 

, ss. 30th September, A. D. 18 
Then personally appeared the above-named and 

and severally acknowledged this indenture to be their free act and deed. 

(Signature.) Justice of the Peace, 


CHAPTER VI. 

AGREEMENT AND ASSENT. 


SECTION I. 

THE LEGAL MEANING OF AGREEMENT. 

No contract which the law will recognize and enforce exists, 
until the parties to it have agreed upon the same thing, in the 
same sense. Thus, in a case where the defendants by letter 
offered to the plaintiffs a certain quantity of “good” barley, at 
a certain price. Plaintiffs replied: “We accept your offer, 
expecting you will give us fine barley and full weight.” The 
jury found that there was a distinction in the trade between the 
words “good” and “fine,” and the court held that there was 
not a sufficient acceptance to sustain an action for non-delivery 
of the barley. So where a person sent an order to a merchant 
for a particular quantity of goods on certain terms of credit, 
and the merchant sent a less quantity of goods, and at a shorter 
credit, and the goods were lost by the way, it was held by the 
court that the merchant must bear the loss, for there was no 
sale or contract between the parties. 

There is an apparent exception to this rule, when, for exam¬ 
ple, A declares that he was not understood by B, or did not 
understand B, in a certain transaction, and that there is there¬ 
fore no bargain between them; and B replies by showing that 
the language used on both sides was explicit and unequivocal, 




68 


AGREEMENT AND ASSENT. 


and constituted a distinct contract Here, B would prevail. 
The reason is, that the law presumes that every person means 
that which he distinctly says. If A had offered to sell B his 
horse for twenty dollars, and received the money, and then 
tendered to B his cow, on the ground that he was thinking only 
of his cow , and used the word horse by mistake, this would not 
avoid his obligation, unless he could show that the mistake was 
known to B; and then the bargain would be fraudulent on B’s 
part. This would be an extreme case; but difficult questions 
of this sort often arise. If A had agreed to sell, and had actu¬ 
ally delivered, a cargo of shingles at “3.25,” supposing that he 
was to receive that price for a “bunch,” which contains five 
hundred, and B supposed that he had bought them at that price 
for a “thousand,” which view should prevail? The answer 
would be, first, that if there was, honestly and actually, a 
mutual mistake, there was no contract, and the shingles should 
be returned. But, secondly, if a jury should be satisfied, from 
the words used, from the usage prevailing where the bargain 
was made and known to the parties, or from other circumstances 
attending the bargain, that B knew that A was expecting that 
price for a bunch, B would have to pay it; and if they were satis¬ 
fied that A knew that B supposed himself to be buying the 
shingles by the thousand, then A could not reclaim the 
shingles, nor recover more than that price. There was such a 
case so decided. 

In construing a contract, the actual and honest intention of 
the parties is always regarded as an important guide. But it 
must be their intention as expressed in the contract. 

If the parties, or either of them, show that a bargain was 
honestly but mistakenly made, which was materially different 
from that intended to be made, it would be a good ground for 
declaring that there was no contract. 

Mistakes of fact in a contract can be corrected by the courts, 
but not mistakes of law; no man being permitted to take 
advantage of a mistake of the law, either to enforce a right, or 
avoid an obligation; for it would be obviously dangerous and 
unwise to encourage ignorance of the law by permitting a party 
to profit, or to escape, by his ignorance. But the law which 


WHA T IS AN ASSENT. 


69 

one is required at his peril to know, is the law of his own coun¬ 
try. Ignorance of the law of a foreign state is ignorance of 
fact. In this respect the several States of the Union are foreign 
to each other. Hence, money paid through ignorance or mis¬ 
take of the law of another State may be recovered back. 

Fraud annuls all obligation and all contracts into which it 
enters, and the law relieves the party defrauded. If both of the 
parties act fraudulently, neither can take advantage of the fraud 
of the other; and if one acts fraudulently, he cannot set his 
own fraud aside for his own benefit. Thus, if one gives a 
fraudulent bill of sale of property, for the purpose of defraud¬ 
ing his creditors, he cannot set that bill aside and annul that 
sale, although those who are injured by it may. 

SECTION II. 

WHAT IS AN ASSENT? 

The most important application of the rule stated at the 
beginning of this chapter, is the requirement that an accept¬ 
ance of a proposition must be a simple and direct affirmative, 
in order to constitute a contract. For if the party receiving 
the proposition or offer accepts it on any condition, or with any 
change of its terms or provisions which is not altogether imma¬ 
terial, it is no contract until the party making the offer consents 
to those modifications. 

Therefore, if a party offers to buy certain goods at a certain 
price, and directs how the goods shall be sent to him, and the 
owner accepts the offer and sends the goods as directed, and 
they are lost on the way, it is the buyers loss, because the 
goods were his by the sale, which was completed when the offer 
was accepted. But if the owner accepts the offer, and in his 
acceptance makes any material modification of its terms, and 
then sends the goods, and they are lost, it is his loss now, because 
the contract of sale was not completed. 

Nor will a voluntary compliance with the conditions and 
terms of a proposed contract always make it a contract obliga¬ 
tory on the other party, unless there have been an accession to, 
or an acceptance of, the proposition itself. In general, if A 


AGREEMENT AND ASSENT. 


7 o 

says to B, if you will do this, I will do that; and B instantly 
does what was proposed to him, this doing so is an acceptance, 
and A is bound. But if the doing of the thing may be some¬ 
thing else than an acceptance of the offer, or if the thing may 
be done for some other reason than to signify an acceptance or 
assent, there must be express acceptance also, or there is no 
bargain. 

SECTION ill. 

OFFERS MADE ON TIME. 

It sometimes happens that one party makes another a cer¬ 
tain offer, and gives him a certain time in which he may accept 
it. The law on this subject was once somewhat uncertain, but 
may now be considered as settled. It is this: If A makes an 
offer to B, which B at once accepts, there is a bargain. But it 
is not necessary that the acceptance should follow the offer 
instantaneously. B may take time to consider, and although A 
may expressly withdraw his offer at any time before acceptance, 
yet if he does not do so, B may accept within a reasonable 
time; and if this is done, A cannot say: “ I have changed my 
mind.” What is a reasonable time must depend upon the cir¬ 
cumstances of each case. If A when he makes the offer says 
to B that he may have a certain time wherein to accept it, and 
is paid by B for thus giving him time, he cannot withdraw the 
offer; or if he withdraws it, for this breach of his contract, the 
other party, B, may have his action for damages. If A is not 
paid for giving the time, A may then withdraw the offer at once, 
or whenever he pleases, provided B has not previously accepted 
it. But if B has accepted the offer before the time which was 
given expired, and before the offer was withdrawn, then A is 
bound, although he gave the time voluntarily and without con¬ 
sideration. For his offer is to be regarded as a continuing offer 
during all the time given, unless it be withdrawn. A railroad 
company asked for the terms of certain land they thought they 
might wish to buy. The owner said in a letter, they might have 
it at a certain price, if they took it within thirty days. After 
some twenty-five days the railroad company wrote accepting the 
offer. The owner says, No, I have altered my mind; the land 


A BARGAIN BY CORRESPONDENCE. 


71 

is worth more; and I have a right to withdraw my offer, because 
you paid me nothing for the time of thirty days allowed you. 
But the court held that he was bound, because this was an offer 
continued through the thirty days, unless withdrawn. They 
said that the writing when made was without consideration, and 
did not therefore form a contract. It was then but an offer to 
contract, and the party making the offer most undoubtedly 
might have withdrawn it at any time before acceptance. But 
when the offer was accepted, the minds of the parties met, and 
the contract was complete, and no withdrawal could then be 
made. 

SECTION IV. 

A BARGAIN BY CORRESPONDENCE. 

When a contract is made by correspondence, the question 
occurs, At what time, or by what act, is the contract completed ? 
The law as now settled in this country may be stated thus. If 
A writes to B proposing to him a contract, this is a continued 
proposition or offer of A until it reaches B, and for such time 
afterwards as would give B a reasonable opportunity of accept¬ 
ing it. It may be withdrawn by A at any time before acceptance; 
but is not withdrawn in law until a notice of withdrawal reaches 
B. This is the important point. Thus if A, in Boston, writes 
to B, in New Orleans, offering him a certain price for one 
hundred bales of cotton ; and the next day alters his mind, and 
writes to B, withdrawing his offer; if the first letter reaches B 
before the second reaches him, although after it was written and 
mailed, B has a right to accept the offer before he gets the letter 
withdrawing it, and by his acceptance he binds A. But if B 
delays his acceptance until the second letter reaches him, the 
offer is then effectually withdrawn. It is a sufficient acceptance 
if B writes to A declaring his acceptance, and puts his letter 
into the post-office. It seems now quite clear, that as soon as 
the letter leaves the post-office, or is beyond the reach of the 
writer, the acceptance is complete. That is, on the 5th of May, 
A in Boston writes to B, in New Orleans, offering to buy certain 
goods there at a certain price. On the 8th of May, A writes 
that he has altered his mind and cannot give so much, and 


72 


AGREEMENT AND ASSENT. 


mails the letter. On the 14th of May, B in New Orleans 
receives the first letter, and the next day, the 15th, answers it, 
saying that he accepts the offer and mails his letter. On the 
17th, he receives the second letter of A withdrawing the offer. 
Nevertheless the bargain is complete and the goods are sold. 
But if B had kept his letter of acceptance by him until he had 
received A’s letter of withdrawal, he could not then have put 
his letter into the mail and bound A by his acceptance. 

The party making the offer by letter is not bound to use the 
same means for withdrawing it which he uses for making it; 
because any withdrawal, however made, terminates the offer, if 
only it reaches the other party before his acceptance. Thus, 
if A in the case just supposed, a week after he has sent his 
offer by letter, telegraphs a withdrawal to B, and this withdrawal 
reaches him before he accepts the offer, this withdrawal would 
be effectual. So if he sent his offer by letter to England, in a 
sailing ship, and a fortnight after sent a revocation in a steamer, 
or by telegraph, if this last arrives before the first arrived and 
was accepted, it would be an effectual revocation. 

SECTION V. 

WHAT EVIDENCE MAY BE RECEIVED IN REFERENCE TO A WRITTEN 
CONTRACT. 

If an agreement upon which a party relies be oral only, it 
must be proved by evidence. But if the contract be reduced to 
writing, it proves itself; and now no evidence whatever is 
receivable for the purpose of varying the contract or affecting 
its obligations. The reasons are obvious. The law prefers 
written to oral evidence, from its greater precision and certainty, 
and because it is less open to fraud. And where parties have 
closed a negotiation and reduced the result to writing, it is pre¬ 
sumed that they have written all they intended to agree to, and 
therefore, that what is omitted was finally rejected by them. 

But some evidence may always be necessary, and therefore 
admissible; as, evidence of the identity of the parties to the 
contract, or of the things which form its subject-matter. Quite 
often, neither the court nor the jury can know what person, or 



EVIDENCE OF A WRITTEN CONTRACT. 


73 

what thing, or what land, a contract relates to, unless the parties 
agree in stating this, or evidence shows it. The rule on this 
subject is, that, while no evidence is receivable to contradict or 
vary a written contract, evidence may be received to explain its 
meaning, and show what the contract is in fact. 

There are some obvious inferences from this rule. The 
first is, that, as evidence is admissible only to explain the con¬ 
tract, if the contract needs no explanation, that is, if it be by 
itself perfectly explicit and unambiguous, evidence is inadmissi¬ 
ble, because it is wholly unnecessary unless it is offered to vary 
the meaning and force of the contract, and that is not permitted. 
Another, following from this, is, that if the evidence purports, 
under the name of explanation, to give to the contract a mean¬ 
ing which its words do not fairly bear, this is not permitted, 
because such evidence would in fact make a new contract. 

A frequent use of oral evidence is to explain, by means of 
persons experienced in the particular subject of the contract, 
the meaning of technical or peculiar words and phrases; and 
such witnesses are called Experts, and are very freely admitted. 

It may be remarked, too, that a written receipt for money is 
not within the general rule as to written contracts, being always 
open, not only to explanation, but even to contradiction, by 
extrinsic evidence. And this is true of the receipt part of any 
instrument. If a written instrument not only recites or 
acknowledges the receiving of money or goods, but contains 
also a contract or grant, such instrument, as to the contract or 
grant, is no more to be affected by any evidence than if it con¬ 
tained no receipt; but as to the receipt itself, it may be varied 
or contradicted in the same manner as if the instrument con¬ 
tained nothing else. Thus, if a deed recites that it was made 
in “ consideration of ten thousand dollars, the receipt whereof 
is hereby acknowledged,” the grantor may sue for the money, 
or any part of it, and prove that the amount was not paid; for 
this affects only the receipt part of the deed. But he cannot 
say that the grant of the land was void because he never had 
his money, nor that any agreement the deed contained was void 
for such a reason; because, if he proved that the money was 
not paid for the purpose of thus annulling his grant or agree- 


74 


AGREEMENT AND ASSENT. 


ment, he would be offering evidence to affect the other part of 
the deed; and that he cannot do. 

A legal inference from a written promise can no more be 
rebutted by evidence than if it were written. Thus, if A, by 
his note, promises to pay B a sum of money in sixty days, he 
cannot when called upon resist the claim by proving that B, 
when the note was made, agreed to wait ninety days; and if A 
promise in writing to pay money, and no time is set, this is by 
force of law a promise to pay on demand, and evidence is not 
receivable to show that a distant period was agreed upon. 

Generally speaking, all written instruments are construed 
and interpreted by the law according to the simple, customary, 
and natural meaning of the words used. 

It should be added, that when a contract is so obscure or 
uncertain that it must be set wholly aside, and regarded as no 
contract whatever, it can have no force or effect upon the rights 
or obligations of the parties, but all of these are the same as if 
they had not made the contract. 

SECTION VI. 

CUSTOM, OR USAGE. 

A custom, or usage, which may be regarded as appropriate 
to a contract, has often great weight in reference to it. This it 
may have, first, as to the construction or meaning of its words; 
and next, as to the intention or understanding of the parties. 

The ground and reason for this influence of a custom is this. 
If it exists so widely and uniformly among such persons as 
make the contract, and for so long a time, that every one of 
them must be considered as knowing it, and acting with refer¬ 
ence to it, then it ought to have the same force as if both 
parties expressly adopted it; because each party has a right to 
think that the other acted upon it. 

Sometimes this is carried very far. In one English case, a 
man had agreed to leave in a certain rabbit warren ten thousand 
rabbits , and the other party was permitted to prove that, by the 
usage of that trade, a thousand meant one hundred dozen, or 
twelve hundred. In an American case, a man agreed to pay a 


CUSTOM , OR USAGE . 


75 


carpenter twelve shillings a day for every man employed by him 
about a certain building; the carpenter was permitted to prove 
that, by the usage of that trade, “a day” meant ten hours’ 
work; and as his men had worked twelve and a half, he was 
permitted to charge fifteen shillings, or for one and one-fourth 
days’ work, for every day so spent. 

In these cases the custom affected the meaning of the 
words. But it also has the effect of words; as if a merchant 
employed a broker to sell his ship, and nothing was said about 
terms, and the broker did something about it, and the ship was 
sold, if the broker could prove a universal and well-established 
custom of that place, that for doing what he did under the 
employment he was entitled to full commissions, he would have 
them, as much as if they were expressly promised. 

Any custom will be regarded by the court, which comes 
within the reason of the rule that makes a custom a part of the 
contract. It comes within the reason only when it is so far 
established, and so well known to the parties, that it must be 
supposed that their contract was made with reference to it. 
For this purpose, .the custom must be established and not casual, 
uniform and not varying, general and not personal, and known 
to all the parties. But the degree in which these characteristics 
must belong to the custom will depend in each case upon its 
peculiar circumstances. Let us suppose a contract for the 
making of an article which has not been made until within a 
dozen years, and only by a dozen persons. Words are used in 
this contract of which the meaning is to be ascertained; and it 
is proved that these words have been used and understood in 
reference to this article, always, by all who have ever made it, 
in one way. Then this custom will be permitted to explain and 
interpret the words of the parties. But if the article had been 
made a hundred years or more, in many countries and by multi¬ 
tudes of persons, the evidence of this use of these words by a 
dozen persons in a dozen years would not be sufficient to give 
to this practice the force of custom. 

Other facts must be considered; as, how far the meaning 
sought to be put on the words by custom varies from their 
common meaning in the dictionary, or from general use; and 


AGREEMENT AND ASSENT. 


76 

whether other makers of the article use these words in various 
senses, or use other words to express the alleged meaning. 
Because the main question is always this: Can it be said that 
both parties must have used, or ought to have used, these words 
in this sense, and that each party had good reason to believe 
that the other party so used them ? Thus when the brief but 
violent “Morus multicaulis” (or mulberry) speculation prevailed, 
a few years ago, a man made a contract to sell and deliver a 
certain number of the trees “ a foot high; ” and the buyer was per¬ 
mitted to prove that, by the usage and custom of all who dealt 
in that article, the length was measured to the top of the ripe 
wood only, rejecting the green and immature top; and the 
“foot high” was to be so understood. 

No custom, however, can be proved or permitted to influence 
the construction of a contract, or vary the rights of the parties, 
if the custom itself be illegal. For this would be to permit, or 
even oblige, parties to break the law, because others had 
broken it. 

Nor would the courts sanction a custom which was in itself 
unreasonable and oppressive. There was a vessel cast ashore 
on the coast of Virginia, and the master sold the cargo on the 
spot; and on trial the jury found that he was authorized to do 
so by the usage there; but the Supreme Court of Massachu¬ 
setts, where the ship and cargo were insured, said that the 
usage was unreasonable, and they would not allow it. The 
Supreme Court of Pennsylvania in one case refused to allow a 
usage, as unreasonable, by which plasterers charged half the 
size of the windows at the price per square yard agreed on for 
the plastering of a house. 

Lastly, no custom, however universal, or old, or known 
(unless it has actually become a law), has any force whatever, if 
the parties see fit to exclude and refuse it by words of their 
contract, or provide that the thing which the custom affects 
shall be done in a way different from the custom. For a custom 
can never be set up against either the express agreement or the 
clear intentions of the parties. 

I will now give forms for various agreements or contracts: 


FORMS OF CONTRACTS OR AGREEMENTS. 


77 


FORMS OF CONTRACTS OR AGREEMENTS. 

Every agreement should be written, and signed by both 
parties, and witnessed, where this can be done; although the 
law absolutely requires witnesses in very few cases, and in none 
of mere contract. It is prudent, however, to have them, for it 
is a rule of law, that things which cannot be proved and things 
which do not exist are the same in the law. 

Everything agreed upon should be written out distinctly, 
and care should be taken to say all that is meant, and just what 
is meant, and nothing else; for it is a rule of law, that no oral 
testimony shall control a written agreement, unless fraud can be 
proved. Against fraud nothing stands. 

( 6 .) 

1 —A G-eneral Agreement, sufficient for many purposes. 

MUTUAL AGREEMENT OF TWO. 

A. B. of ( place of residence, and business or profession ), and C. D. of 
(as before ), have agreed together, at (place), on (the day should always be 
named), and do hereby promise and agree to and with each other, as fol¬ 
lows : A. B., in consideration of the promises hereinafter made by C. D. 
(if there are any such promises), and of (here state any other consideration 
which A. B. has), promises and agrees to and with C. D., that (here set forth , 
as above directed , the whole of what A. B. undertakes to do.) 

And C. D. in consideration (set forth consideration and promise as 
before.) 

Witness our hands, to two copies of this agreement interchangeably. 

A. B. 

Signed and Interchanged in Presence of C. D. 

E. F. 

G. H. 

( 7 .) 

A General Agreement, as used in the Western States. 

Articles of Agreement, Made this day of in the year 

of our Lord one thousand eight hundred and between 

party of the first part, and party of the second part, 

Witnesseth, That the said party of the first part hereby covenants and 
agrees, that if the party of the second part shall first make the payments 
and perform the covenants hereinafter mentioned on part to be made 

and performed, the said party of the first part will 


AGREEMENT AND ASSENT. 


73 

And the said party of the second part hereby covenants and agrees to pay 
to said party of the first part the sum of dollars, in the manner 

following : dollars cash in hand paid, the receipt whereof is 

hereby acknowledged, and the balance 

with interest at the rate of per centum per annum, payable 

annually. And in case of the failure of the said party of the 

second part to make either of the payments, or perform any of the covenants 
on part hereby made and entered into, this contract shall, at the 

option of the party of the first part, be forfeited and determined, and the 
party of the second part shall forfeit all payments made by on this 

contract, and such payments shall be retained by the said party of the first 
part in full satisfaction and in liquidation of all damages by sustained, 

and shall have the right to 

It is mutually agreed that all the covenants and agreements herein 
contained shall extend to and be obligatory upon the heirs, executors, 
administrators and assigns of the respective parties. 

In Witness Whereof, The parties to these presents have hereunto set 
their hands and seals, the day and year first above written. 

( Signatures .) (Seals.) 

Signed ’ Sealed\ and Delivered in presence of 

( 8 .) 

General Contract for Mechanics’ "Work. 

Contract made this day of A. D. 18 by and between 

of of the first part, and of 

of the second part, 

Witnesseth, That the party of the first part, for the consideration here¬ 
inafter mentioned, covenants and agrees with the party of the second part 
to perform in a faithful and workmanlike manner the following specified 
work, viz.: 

And in addition to the above to become responsible for all materials deliv¬ 
ered and receipted for, the work to be commenced and to be 

completed and delivered free from all mechanic or other liens, on or before 
the day of . And the party of the second part covenants 

and agrees with the party of the first part, in consideration of the faithful 
performance of the above specified work, to pay to the party of the first part 
the sum of dollars, as follows : 

And it is further mutually agreed by and between both parties, that in case of 
disagreement in reference to the performance of said work, all questions of 
disagreement shall be referred to and the award of said referees 

or a majority of them, shall be binding and final on all parties. 


FORMS OF CONTRACTS OR AGREEMENTS. 


79 

In Witness Whereof, We hereunto set our hands and seals on the day 
and year first above written. 

( Signatures.) (Seals.) 

Executed in Presence of 

( 9 .) 

An Agreement for Purchase and Sale of Lands, in Use in 

the Middle States. 

Agreement, Made and concluded the day of A. D. 

18 by and between of the State of of the first part, 

and of the State of of the second part, 

Whereas, The party of the second part hath agreed to purchase from 
the party of the first part, either on his own account or for whom it may con¬ 
cern, certain land in Township, County, and State of 

And it is agreed that the party of the second part shall have the right to 
divide and subdivide said land in such manner, and appropriate to his own 
use so much thereof as he may see fit, giving and paying to the party of the 
first part the sum of dollars, on or before the day 

of A. D. 18 , and reserving to his own use any amount for 

which the whole or any be sold over the said 
dollars. 

And these Articles further Witness, That the party of the first part, 
for and in consideration of the premises and the sum of 
lawful money, to him paid by the party of the second part, at and before the 
execution hereof, doth covenant, promise, grant, and agree, with the party 
of the second part, his heirs and assigns, upon sale of said lands being 
made by the party of the first part, to sufficiently grant, convey, and assure 
said lands, with the appurtenances, to the said party of the second part, or 
such person or persons as he may direct; and in default of the said party 
of the second part paying the amount hereinbefore specified at the time 
mentioned, then these articles are to be deemed and considered canceled to 
all intents and purposes, the same as though they never had been made. 

In Witness Whereof, The parties hereto have hereunto set their hands 
and seals the day and year first aforesaid. 

(. Signatures .) (Seals.) 

Sealed and Delivered in Presence of 

( 10 .) 

An Agreement for Sale of Land, in Use in the Western 

States. 

Articles of Agreement, Made this day of in the 

year one thousand eight hundred and between 


of the first part, and 


of the second part, 


8o 


AGREEMENT AND ASSENT. 


Witnesseth, That the party of the first part, at the request of the party 
of the second part, and a consideration of the money to be paid, and the 
covenants as herein expressed to be performed by the party of the second 
part (the prompt performance of which payments and covenants being a 
condition precedent, and time being of the essence of said condition), hereby 
agree to sell to the said party of the second part, all certain lot 

and parcel of land, situate in County of and State of 

, known and designated as follows, viz.: 

with the privileges and appurtenances thereto belonging. 

And the said party of the second part, in consideration of the premises, 
hereby agrees to pay the party of the first part, his or their executors, 


administrators, or assigns, 

in 

days, 

the sum of 


dollars, 

as follows, viz.: 



with interest at the rate of 

per cent, per annum from 

to 


be paid semi-annually in each year, on the whole sum from time to time 
remaining unpaid. And also that he will well and faithfully, in due season, 
pay, or cause to be paid, all ordinary taxes assessed for revenue purposes 
upon said premises, or any part thereof, subsequent to the year 18 . And 

also all other assessments which now are, or may be hereafter, charged or 
assessed upon or against said premises, or any part thereof. But in case 
the said party of the second part fail to pay any or all such taxes or assess¬ 
ments upon said premises or appurtenances, or anypart thereof, whenever and 
as soon as the same shall become due and payable ; and the party of the first 
part shall pay from time to time, or at any time, any or all such taxes or 
assessments, or cause the same to be paid, the amount of any and all such 
payments so made by the party of the first part, with interest thereon from 
the date of payment, shall immediately thereupon become an additional con¬ 
sideration, and payment thereof shall be made by the party of the second 
part hereto, for the premises herein agreed to be conveyed. 

And the said party of the first part further covenants and agrees with 
the said party of the second part, that upon the faithful performance by said 
party of the second part of undertaking in his behalf, and of the payment 
of principal and interest of the sum above mentioned, in the manner speci¬ 
fied, he the said party of the first part, shall and will, without delay, well 
and faithfully execute, acknowledge, and deliver in person, or by attorney 
duly authorized, to the party of the second part, heirs or assigns, a 
deed of conveyance of all the right, title, and interest of the party of the 
first part, of, in and to the above described premises, with the appurtenances, 
with full covenants of warranty, also of waiver and release of all rights of 
the said party of the first part, resulting from the laws of this State pertain¬ 
ing to the exemption of homesteads. 

And it is Mutually Covenanted and Agreed, by and between the par¬ 
ties hereto, that in case default shall be made in the payments of principal 


FORMS OF CONTRACTS OR AGREEMENTS. 


81 


or interest at the time or any of the times above specified for the payment 
thereof, and for days thereafter, this agreement, and all the preced¬ 

ing provisions hereof, shall be null and void, and no longer binding, at the 
option of said party of the first part, representatives or assigns ; and 
all the payments which shall then have been made thereon, or in pursuance 
hereof, absolutely and forever forfeited to the said party of the first part; or at 
the election of the said party of the first part, representatives and assigns, 
the covenants and liability of said party of the second part shall continue 
and remain obligatory upon the said party of the second part, and may be 
enforced, and the said consideration-money, and every part thereof, with the 
annual interest as above specified, be collected by proper proceedings in law 
or equity, from the said party of the second part, heirs, executors, 

administrators, or assigns. 

And it is Further Mutually Covenanted and Agreed, by and between 
the parties hereto, that in case of default in the payment stipulated to be 
made by the said party of the second part, or any part thereof, and the elec¬ 
tion of the party of the first part, representatives or assigns, to 

consider thfe foregoing contract of sale at an end, and prior payments for¬ 
feited, the said party of the second part, heirs, representatives or 

assigns, who may have possession, or the right of possession, of said prem¬ 
ises at the time of such default, or at any time thereafter, shall be consid¬ 
ered, and are hereby agreed and declared to be, in law and equity, the tenant 
or tenants at will of said party of the first part, representatives 

and assigns, on a rent equal to an interest of ten per cent, per annum on the 
whole sum of the purchase-money above specified, payable quarter-yearly 
in advance from the day of such default in payment of principal or interest. 
And after such default in payment, and election to consider the above con¬ 
tract of sale as void, the said party of the first part, representatives 

and assigns, shall and may have and exercise all the powers, rights, and 
remedies provided by law or equity to collect such rent, or to remove such 
tenant or tenants, the same as if the relation of landlord and tenant, hereby 
declared, were created by an original absolute lease for that purpose, on a 
special rent, payable quarterly on a tenure at will. And that in such case 
the said tenant or tenants shall and will pay, or cause to be paid, all taxes, 
assessments, ordinary and extraordinary, which may be laid or assessed on 
such premises or any part thereof, during the continuance of such tenancy; 
and will not permit or suffer any waste or damage to said premises or the 
appurtenances, but will keep and deliver up, on the termination of such ten¬ 
ancy, the said premises and appurtenances, in as good order and repair 
(ordinary wear and decay, and unavoidable injury by the elements, excepted) 
as they were in at the commencement of said tenancy. 

In Witness Whereof, The party of the first part and 

the party of the second part, in own proper person, have hereunto 

respectively set their hands and seals on the day and year first above written. 

{Signatures) (Seals.) 

Signed, Sealed, and Delivered in Presence of 
6 


82 


AGREEMENT AND ASSENT. 


( 11 .) 

An Agreement for Warranty Deed Used in the Western 

States. 

Articles of Agreement, made this day of in the year 

of our Lord one thousand eight hundred and between 

party of the first part, and party of the second part, 

Witnesseth, That said party of the first part hereby covenants and 
agrees, that if the party of the second part shall first make the payment and 
perform the covenants hereinafter mentioned on part to be made and 

performed, the said party of the first part will convey and assure to the party 
of the second part, in fee simple, clear of all incumbrances whatever, by a 
good and sufficient warranty deed, the following lot, piece, or parcel of 
ground, viz.: 

And the said party of the second part hereby covenants and agrees to pay 
to said party of the first part, the sum of dollars, in the manner 

following: dollars, cash in hand paid, the receipt whereof is hereby 

acknowledged, and the balance 

with interest at the rate of per centum per annum, payable 

annually, on the whole sum remaining from time to time unpaid, and to pay 
all taxes, assessments, or impositions that may be legally levied or imposed 
upon said land, subsequent to the year 18 . And in case of the failure 

of the said party of the second part to make either of the payments, or per¬ 
form any of the covenants on part hereby made and entered into, this 
contract shall, at the option of the party of the first part, be forfeited and 
determined, and the party of the second part shall forfeit all payments made 
by on this contract, and such payments shall be retained by the said 
party of the first part in full satisfaction and in liquidation of all damages by 
sustained, and shall have the right to re-enter and take 

possession of the premises aforesaid. 

It is mutually agreed that all the covenants and agreements herein con¬ 
tained shall extend to and be obligatory upon the heirs, executors, adminis¬ 
trators and assigns of the respective parties. 

In Witness Whereof, The parties to these presents have hereunto set 
their hands and seals the day and year first above written. 

( Signatures .) (Seals.) 

Signed\ Sealed , and Delivered in Presence of 

( 12 .) 

A Contract to convey Real Estate, in Use in the Middle 

States. 

This Article of Agreement, Made and entered into the 
day of one thousand eight hundred and between 

of the first part, and 


of the second part, 


FORMS OF CONTRACTS OR AGREEMENTS. 


83 


Witnesseth, as follows : The said party of the first part hereby agrees 
to sell unto the said party of the second part all that parcel of land situated, 
bounded, and described as follows. That is to say 

for the sum of 

to be paid by the said party of the second part, in manner and at the times 
hereinafter mentioned and covenanted, on the part of the said party of the 
second part: And the said party of the first part further agrees, that on the 
day of on receiving from the said party of the second part 

the sum of 

the said party of the first part shall and will, at 

at own proper cost and expense, execute and deliver to the said 

party of the second part, or to assigns, a proper deed of conveyance, 

duly acknowledged, for the conveying and assuring to them the fee 

simple of the said premises, free from all incumbrances, 

which deed of conveyance shall contain a general warranty, and the usual 
full covenants. 

And the said party of the second part hereby agrees to purchase of the 
said party of the first part the premises above mentioned, at and for the 
price and sum above mentioned, and to pay to the said party of the first 
part the purchase-money therefor, in manner and at the times following, 
to wit: 

And it is further agreed by and between the parties to these presents, 
that the said party of the first part shall have and retain the possession of 
said premises, and be entitled to the rents and profits thereof 

until the day of when full possession of the 

same shall be delivered to the said party of the second part, by the said 
party of the first part: 

And it is understood and agreed, that the stipulations aforesaid are to 
apply to and bind the heirs, executors, administrators, and assigns of the 
respective parties. 

And it is further hereby agreed, that in case the said party of the first 
part shall fail or refuse to execute and deliver a proper deed of conveyance 
in manner and at the time and place above specified for that purpose, provided 
the party of the second part shall be ready to fulfill and perform the cove¬ 
nants then to be fulfilled on part; or in case the said party of the 

second part shall fail or refuse to pay the said sum of 

at the time and place as above agreed upon, provided the party of the first 
part shall be ready to deliver such deed of conveyance, as aforesaid; then 
the party so failing shall and will pay to the other party, or assigns, 

the sum of dollars, which sum is hereby declared, fixed, and agreed 


AGREEMENT AND ASSENT. 


84 

upon, as the liquidated amount of damages to be paid by the party so failing 
as aforesaid, for non-performance. 

(Signatures?) (Seals.) 

Signed ’ Sealed\ and Delivered in Presence of 

( 13 .) 

An Agreement for the Purchase of an Estate, in Use in New 

England. 

Articles of Agreement, Had, made, concluded, and agreed upon this 
day of A.D. between of of the one 

part, and of of the other part. First, the said (seller) in 

consideration of the sum *of to him paid by the said (buyer) at or 

before the sealing and delivery of these presents, and of the further sum of 
to be paid as hereinafter is mentioned, doth hereby for himself, his 
heirs, executors, and administrators, and every of them, covenant, promise, 
and agree, to and with the said his heirs, executors, and adminis¬ 
trators, and every of them, by these presents, that he the said his 

heirs and assigns (and all and every other person and persons whatsoever, 
claiming or to claim any right, title, or interest under him, or any other 
person or persons whatsoever, of, in, or to the lands 

and premises hereinafter mentioned) shall and will, at the proper costs and 
charges of the said his heirs and assigns (except fees to 

counsel), on or before the day of next ensuing, by such con¬ 

veyances, assurances, ways and means in the law, as he the said 

his heirs and assigns, or his or their counsel, shall reasonably 
devise, advise, or require, well and sufficiently grant, sell, release, convey, 
and assure to the said and his heirs, or to whom he or they shall 

appoint or direct, all that situate now in the tenure or occupation 

of or his assigns, with covenants to be therein contained, that the 

said premises, at the time of such conveyance, are free from all incum¬ 
brances and demands whatsoever (except ) and all other usual and 
reasonable covenants. In consideration whereof, the said for himself, 
his heirs, executors, administrators, and assigns, doth hereby covenant, 
promise, and agree, to and with the said his heirs, executors, and 

administrators, by these presents, that he the said his heirs, executors, 

or administrators, or some of them, shall and will, well and truly, pay, or 
cause to be paid, unto the said his heirs, executors, or administrators, 

the aforesaid sum of at the time of executing the said conveyances. 

And for the true performance of all and every the covenants and agreements 
aforesaid, each of the said parties to these presents doth hereby bind 
himself, his heirs, executors, and administrators to the other of them, his 
heirs, executors, administrators, and assigns in the penal sum of 

In Witness Whereof, The said parties to these presents have here¬ 
unto set their hands and seals the day and year first above written. 

(Signatures) (Seals.) 

Signed, Sealed, and Delivered in Presence of 


FORMS OF CONTRACTS OR AGREEMENTS. 


85 

An agreement for the sale of lands should always state the 
covenants, whether of general or special warranty, which it 
is intended that the contemplated conveyance shall contain. 

Covenants, Provisos, and Agreements, which may be 
Inserted in the Preceding Form. 

1. Covenant that the vendor, before the purchase is completed, shall not 
commit waste, or grant any new leases. 

And also that the said {the seller) shall not nor will, in the mean 

time, cut down any timber or trees, or commit any waste or spoil whatsoever, 
in or upon the premises, or any part thereof, nor shall or will grant any new 
leases of the premises, or any part thereof, without the privity or consent of 
the said {the buyer) or his heirs or assigns. 

2. Another covenant for the payment of the purchase-money. 

And the said {the buyer) doth hereby covenant and agree to and with 
the said {the seller) his heirs, executors, and administrators, that upon 
sealing and executing such conveyance and assurance of the said unto 
him and them as aforesaid, according to the true intent of these presents, 
he the said his heirs, executors, or administrators, shall and will pay, 

or cause to be paid, unto the said his heirs, executors, or adminis¬ 
trators, the said sum of in full for the purchase of the said premises. 

{Or there may be an agreement to retain part of the purchase-money to pay 
off an incumbrance, as follows : 

And it is agreed between the said parties that the said shall or 

may retain out of the said purchase-money the sum of for the purpose 
of paying off the sum of secured by a mortgage on the said 

premises, given by the said to bearing date 

when the said sum shall become due by virtue of the said mortgage. 

3. This agreement may be inserted: 

And it is agreed, that if the counsel of the said shall not approve 

of the title of the said to the said premises, this agreement shall be 

void. 

4. This proviso :nay be inserted: 

Provided always, and it is hereby mutually covenanted and agreed, by and 
between the parties to these presents, for themselves and their respective 
heirs, in manner as follows, viz : That in case the counsel of the said 
{the buyer) shall not approve of the title of him the said (the seller) to the 
said or in case {the buyer) on his view thereof (he not having ever 

viewed the same) will not proceed in the purchase thereof, and shall and do, 
within one month next after the date hereof, give notice, in writing, to the 
said (or to * of ) that he will not purchase the 

said then and in either of the cases, these presents shall be absolutely 


86 


AGREEMENT AND ASSENT. 


void; and that then he the said (the seller) his heirs, executors, or 

administrators, shall and will, within six months now next ensuing, well and 
truly repay, or cause to be repaid unto the said (the buyer) his heirs, 
executors, administrators, or assigns, the said sum of so by him now 

paid as aforesaid, together with legal interest for the same, from henceforth 
to be computed until payment thereof. 

5. A provision in articles of purchase, in case of the delay or default of 
either party. 

that if by reason of any delay, neglect, or default, by or on the 
part of the said (the purchaser) or his heirs, or his or their counsel 

or agents, the said conveyances of the said estates and premises shall not 
be ready and tendered to the said (the vendor) or his heirs, to be 

executed, on or before the said day of then and in such 

case,, the said his shall and will pay and allow to the said 

his interest for the said sum of at the rate of 

to be computed from the day of until the said (the 

principal sum) shall be paid as aforesaid; but if, by reason of any delay, 
neglect or default, by or on the part of the said or any claiming 

under him, such conveyances as aforesaid shall not be executed on or 
before the said day of then and in such case, no such 

interest as aforesaid shall be paid or allowed during the time of such delay 
of the said 

6. An agreement that if a good title, &*c., cannot be made on, dr^c., the 
Premises shall stand as security for the money paid down, &*c. 

It is hereby further agreed and declared by and between all the said 
parties to these presents, and particularly the said (the vendors) do hereby 
agree and declare, that in case they cannot make out a good title to, and 
execute and perfect such conveyances and assurances of the premises as 
aforesaid on or before the day of now next ensuing, then 

the said and every part thereof, shall remain and be a security to 

the said (thepurchaser) for securing to him, his the repay¬ 
ment of the said sum of now by him paid as aforesaid, at or upon 

the said day of now next ensuing, together with interest 

for the same after the rate of from henceforth in the meantime and 

until payment thereof, which interest in such case they the said 
(the purchasers) do hereby for themselves, severally and respectively, and for 
their several and respective heirs, promise and agree to pay accord¬ 
ingly, and then, also, in such case all such rents, as he the said 

(the purchaser) shall have received, by or out of the premises as aforesaid, 
shall be deemed and allowed by him in part of payment of the same 
(the principal purchase-money) and interest. 

7. That if the other parties do not perform their covenants, the purchaser 
shall not be obliged to perform his. 

And it is mutually agreed and declared to be the true intent and meaning 


FORMS OF CONTRACTS OR AGREEMENTS. 


87 


jf these presents, that if it shall happen that any of them the said 
their heirs, shall neglect to perform his or their parts of the 

covenants and agreements herein contained, that then, and in any such case, 
the said his heirs, executors, and administrators, or any of them, 

shall not be hereby obliged to perform his and their covenants herein 
contained, or any of them, but shall, if he shall think fit, be absolutely 
discharged from the same. 

( 14 .) 

Agreement for the Sale of an Estate by Private Contract. 

Articles of Agreement, Made this day of 

between of and of 

The said agrees to sell the said all that with the 

appurtenances, for the sum of and will, on or before the day of 

next, on the receipt of the said sum of at the charges of 

the said execute a proper conveyance thereof, with a covenant of 

general warranty and against incumbrances, to the said and his 

heirs and assigns. 

And the said agrees, that, on the execution of such conveyance, 

he will pay the said sum of to the said or his assigns. 

And it is further agreed, that the conveyance shall be prepared by and at 
the expense of the said to the approbation of the respective 

counsel of the said and and that all taxes and outgoings 

in respect of the premises in the meantime shall be paid by the said 
And it is agreed, that the said shall receive the rents and profits 

of the premises, from next, to his proper use. And it is agreed, 

that if the said conveyance shall not be executed, and the purchase-money 
paid on or before the day of then the said 

shall pay interest for the same from the same day, unto the said 
after the rate of per cent, per annum . 

In Witness Whereof, 

( Signatures.) (Seals.) 

( 15 .) 

An Agreement to be signed by an Auctioneer, after a Sale 

by Auction. 

I Hereby Acknowledge, That has been this day declared 

the highest bidder and purchaser of (describe the real estate) at the sum of 

; and that he has paid into my hands the sum of as a 

deposit, and in part payment of the purchase-money; and I hereby agree 
that the vendor shall in all respects fulfil the conditions of sale.* 

Witness my hand, 

(Signatures) (Seals.) 

* It would be well to have the conditions of sale annexed, and refer to them by saying here¬ 
unto annexed. 


88 


AGREEMENT AND ASSENT 


( 16 .) 

An Agreement to be signed by the Purchaser, after a Sale 

by Auction. 

I Hereby Acknowledge, That I have this day purchased by public auc¬ 
tion all that ( describe the estate ) for the sum of ; and have paid 

into the hands of the sum of as a deposit and in 

part payment of the said purchase-money; and I hereby agree to pay the 
remaining sum of unto {the vendor) at on or 

before the day of ; and in all other respects, on my 

part, to fulfil the annexed conditions of sale. 

Witness my hand this day of 

{Signatures) {Seals.) 

( 17 .) 

An Agreement to make an Assignment of a Lease. 

Whereas, {the lessor) hath by his deed indented, dated , 

demised unto the said {the lessee) all that to have and to 

hold to him the said his {reciting the lease) as by the 

said deed indented more fully appears : Now the said for and in 

consideration of dollars, doth hereby for himself, {his heirs, <5rv.) 

covenant, that he the said before the day of 

shall and will, at the costs and charges of {the assignee ), 

his {heirs, &*c) by deed indented, assure, assign, and grant over to the said 
his {his heirs, &*c) the said {thepremises) and all his estate, 
right, title, and demand therein : To have and to hold to the said {the 

assignee) his {heirs, <SrV.) during the residue of the said term of years, then 
to come, of, in, and to the same, by virtue of the said recited indenture, and 
under the rents, covenants, and agreements therein specified. 

{Signatures) {Seals) 

( 18 .) 

An Agreement for making a Quantity of Manufactured 

Articles. 

Articles of Agreement, between {the buyer) of the 

one part, and of the other part. 

The said {the manufacturer) for the consideration hereinafter 

mentioned, doth covenant that he will, at his own charge, make for the said 
{describe the articles to be made) 

of the same quality of materials and goodness, as, and in all other respects 
according to a pattern agreed between the said parties, , and 

deliver the same to the said at within 

months from the date hereof. And the said in consideration 

thereof, doth covenant to pay to the said at the rate of 


FORMS OF CONTRACTS OR AGREEMENTS. 


89 


after months from the delivery of the said as aforesaid. 

And it is agreed, that if any of the said shall not be made 

agreeable to the said pattern, and for that reason shall be rejected by the 
said he the said shall take back such as shall 

so be refused, and deliver the said the like quantity of the 

goodness and make, according to the pattern aforesaid. 

In Witness 

( Signatures.) (Seals.) 

( 19 .) 

Agreement between a Trader and a Book-keeper. 

Articles of Agreement between (the trader) of 

and (the book-keeper) of . The said agrees that he 

will, during the term of years from the date hereof, dwell with the 

said and faithfully keep the books of accounts of the said 

and diligently serve the said in such other business as the said 

shall direct, and shall therein perform the reasonable 
directions of the said without disclosing the same, or any of his 

correspondence, or the secrets of his employment or business to any person 
whatsoever; and shall not correspond with any person corresponding with 
the said , nor use any traffic or dealing for himself, or any other 

person, without the consent of the said in writing. And the 

said further covenants, that he will, during the said term, keep 

true and perfect accounts for the said , and will not embezzle, 

waste or destroy any of the goods, moneys, or effects of the said 
or any of his correspondents ; and also that he the said will, 

from time to time, during the said term, upon request, make and give unto 
the said his a just and perfect account in writing 

of all money, which he the said shall receive and pay out, and 

of all goods and commodities, which he shall, at any time during the said 
term, receive in or deliver out upon the account of the said , or 

any of his correspondents, or by the order of the said . And also, 

that he the said his will pay to the said , 

his all such sums of money as shall be due upon the foot of every 

such account. And also that he the said will not deliver forth 

upon credit any of the goods, merchandise, or moneys, of the said 
or any of his correspondents, to any person or persons whatsoever, without 
the express consent of the said 

And the said (the trader) for himself (and his heirs, &*c.) 

covenants that he will pay to the said (the book-keeper) in considera¬ 
tion of the said services, the yearly sum of in equal payments 

on the days following, viz., on and will, during the said term, 

provide for the said sufficient and suitable meat, drink, washing, 

and lodging. 

In Witness 


(. Signatures.) (Seals.) 


90 


AGREEMENT AND ASSENT. 


( 20 .) 

Agreement for Damages in laying out or altering Road. 

Whereas, A road was laid out on the day of A.D. 18 , 

by and Commissioners of Highways of the Town 

of in the County of and State of on the application of 

the requisite number of legal voters residing within three miles of said 
road, as follows, commencing 

which road passes through the land of being known and 

described as follows, viz.: 

Now, therefore, it is hereby agreed between the said Commissioners and 
the said that the damages sustained by the *aid by reason of 

the laying out and opening said road upon his land, hereinbefore described, 
be liquidated and agreed upon at dollars. 

In Witness Whereof, The said Commissioners and the said 
have hereunto subscribed their names this day of A. D. 18 

(, Signatures .) Commissioners of Highways. 


( 21 .) 

An Agreement between a Person who is Retiring from the 
Active Part of a Business, and another who is to Conduct 
the same for their Mutual Benefit. 

Articles of Agreement, Made, entered into, and concluded upon, this 
day of A. D. , between 

of of the one part, and of of the 

other part: Whereas the said hath conducted and managed for 

some time past the trade or business of the said , and in consid¬ 
eration of the attention and assiduity of the said thereunto, the 

said is willing to continue the said in the man¬ 

agement thereof under the covenants, restrictions, and agreements herein¬ 
after contained ; and in consequence thereof, an inventory and appraisement 
hath been made and taken of the stock, and entered in two receipt-books, one 
of which is to remain in the custody of each of them, the said parties to these 
presents, and is subscribed by both of them, and the value of the said stock 
in the whole, appears to the amount of the sum of : Now these 

presents witness, that for and in consideration of the covenants and agree¬ 
ments hereinafter contained on the part of the said to be 

performed, the said for himself, his executors, and admin¬ 

istrators, doth hereby covenant, promise, and agree, to and with the said 
, that it shall and may be lawful to and for the said 
from time to time, during the term of years, to be 

computed from the day of the date of these presents, if they the said 
and shall jointly so long live, to trade with the said stock, and to 


FORMS OF CONTRACTS OR AGREEMENTS. 


91 


manage and improve the same, in such manner as to the said 
under the direction of the said , shall seem meet, upon trust 

nevertheless, and to the intent and purpose that the said shall and do, 

by and out of the money which shall arise by sale of any part or parts of the 
said stock, buy such goods as shall be requisite to keep up and continue the 
present quality and value thereof, and by and out of the profits which shall 
arise from the trade and dealing, in the first place yearly and every year, pay 
the whole rent of the said house and shop, and pay and discharge all taxes 
which now are, or shall hereafter be, assessed or imposed on him the said 
or the said on account of the said house 

and trade, and in the next place to pay to him the said or 

his assigns, yearly and every year during the said term of years, if 

they the said and shall so long live, one 

clear annuity or yearly sum of by equal half-yearly payments, 

on the day of and the 

day of without any deduction or abatement whatsoever, and 

subject thereto, to retain the residue and overplus of the profits which shall 
arise from his trade and dealing, to and for his own sole use and benefit, as 
a recompense and satisfaction for his care and trouble in the sale and man¬ 
agement of the said stock. And the said in consideration 

of the premises, and of the covenant and agreement hereinbefore on the part 
of the said contained, doth for himself, his executors, and 

administrators, covenant, declare, and agree, that he the said 
shall and will from time to time, and at all times, for and during the said 
term of years, if they the said and 

shall so long jointly live, diligently apply himself to the care and manage¬ 
ment of the said stock, trade, and business, according to his best skill, 
abilities, and discretion, and apply and dispose of the money which shall 
arise from the sale thereof, and all the profits of his trade and dealings, to 
answer and discharge the trusts hereby reposed in him, in such manner as 
hereinbefore is directed, declared, or expressed. And also shall and will 
write true and perfect entries, in proper books of accounts, of all such goods 
as shall be sold, and of all moneys which shall be paid and received by him, 
and permit the same, from time to time, to be inspected by him the said 
or such other person or persons as he shall appoint. And 
further, that he the said shall not nor will, at any time during 

the continuance of the said term of years, buy or sell, or in anywise 

trade or deal in his own name, but in the name only of him the said 
upon the trusts aforesaid; nor do any act whatsoever, whereby the said 
stock, or any part thereof, may be attached, or taken in execution. And also 
that at Christmas next, and so at every succeeding Christmas during the 
said term of years, or oftener, if thereto required by the said , 

he the said shall and will take a full account in writing of 

the said stock, then remaining in the said trade, and of the profits thereof, 
and deliver the same to the said in order to manifest to him a 


AGREEMENT AND ASSENT. 


9 2 

true state thereof, and of his proceedings in the trade by him carried on 
therewith. And at the expiration, or other sooner determination, of the said 
term of years, he the said > his executors or admin¬ 
istrators, shall and will deliver up to him the said » his 

executors or administrators, the stock then remaining for his or their own 
use and benefit, to the value of the sum of losses by bad 

debts, decay of goods, and other inevitable casualties excepted. 

Witness our hands and seals, this day of 

in the year 18 . 

In presence of 

{Signatures.) (Seats.) 

( 22 .) 

A Brief Building Contract. 

Contract for building made this day of one thousand 

eight hundred and by and between of in the 

County of and of in the County of 

Builder . 

The said covenant and agrees to and with the said 

to make, erect, build, and finish, in a gbod, substantial, and workmanlike 
manner, upon situate said 

to be built agreeable to the draught, plans, explanations, or specifications, 
furnished, or to be furnished to said by of good and 

substantial materials ; and to be finished complete on or before the 
day of . And said covenant and agrees to pay to said 

for the same dollars as follows : 

Security against mechanics’, or other lien, is to be furnished by said 
prior to payment by said 

And for the performance of all and every the articles and agreements 
above mentioned, the said and do hereby bind themselves, 

their heirs, executors, and administrators, each to the other, in the penal sum 
of dollars, firmly by these presents. 

In Witness Whereof, We, the said and have hereunto 

set our hands the day and year first above written. 

(1 Signatures.) (Seats.) 

Executed and Delivered in Presence of 

Contracts for building are among those most frequently 
made, and also among those which require the utmost care. A 
specification stating and describing all the things which the 
parties desire and intend to have done shall always accompany 
the contract; and it is very difficult for persons not accustomed to 
the work to remember and specify, and properly describe, all the 


FORMS OF CONTRACTS OR AGREEMENTS. 93 

things they propose to have in the building; and all these things 
should be accurately and precisely stated in the specification. 
From omissions or errors of this kind, cases and questions are 
constantly arising. To assist those who have to prepare for 
themselves or others a contract of this sort, I have given, first, 
a brief and simple form ; I now give a very full and minute form, 
prepared by a skillful lawyer, and in wide use. 


( 23 .) 

A Full and Minute Building Contract. 

An Agreement, of two parts, made this day of in the year 

one thousand eight hundred and by and between l 

part of the first part, and part of the second part. 

The said part of the first part, in consideration of the sum of money to 
be paid by the said part of the second part, as hereinafter mentioned, and 
the covenants and agreements hereinafter recited, to be kept and performed 
by the said part of the second part, do for sel 

and Covenant, Promise, and Agree, to and with the said part 

of the second part, that the said part of the 

first part, shall and will, in a good and workmanlike manner, and according 
to the best of art and ability, do and perform the following work, 

and provide materials for the same, that is to say: 

The whole of said work is to be performed, and all the said materials 
furnished in conformity with the plans and specifications of the same, as 
made by the Architect hereby 

appointed by said part of the second part, which plans and specifications 
bear even date herewith, and are signed by the parties hereto, and under 
the superintendence and direction of hereby appointed 

Superintendent and Agent of the said part of the second part, 
which plans and specifications are to be considered as forming a part of this 
agreement, as if herein fully written and drawn. 

The said part of the first part further agree that the work aforesaid 
shall be commenced and be constantly prosecuted, and the materials afore¬ 
said promptly furnished and that all said work shall be 

completed on or before the day of in the year one thousand 

eight hundred and and, furthermore, that no charge of any 

kind shall be made by the said part of the first part to the said part of 
the second part, beyond the sum of dollars, unless the said part 

of the second part, and the said Superintendents, shall alter the aforesaid 
plans and specifications, in which case the value of such alterations sha21 be 


AGREEMENT AND ASSENT 


94 

added to the amount to be paid under this contract, or deducted therefrom, 
as the case may require : it being expressly understood that no extra work 
of any kind shall be performed, or extra materials furnished, by the said 
part of the first part, unless authorized by the said part of the second 
part, and the said Superintendents in writing; and that the said part of 
the second part, and the said Superintendents may, from time to time, 
make any alterations of, to, and in the said plans and specifications, upon 
the terms aforesaid. 

The said part of the first part, for sel and legal representa¬ 
tives, farther promise and agree that insurance shall be effected upon 
the building as soon as the roof is put on and covered; the amount of said 
insurance to be for such sum as the said part of the second part, and 
the said Superintendents shall direct, to be further increased, from time to 
time, at the direction of the said party of the second part, and the said 
Superintendents; the policy to be in the name and for the benefit of said 
part of the second part, or legal representatives, and to be made 
payable, in case of loss, to for whom it may concern ;—each 

party to this agreement hereby agreeing to pay one-half the cost of such 
insurance. 

The said part of the second part, for sel and legal repre¬ 
sentatives, in consideration of the materials being provided and the labor 
done as herein required, and all other of the stipulations, requirements, mat- * 
ters and things herein set forth, being kept and performed by said part 
of the first part, Covenant, Promise, and Agree, to and with the said part 
of the first part: that will well and truly pay, or cause to be 

paid, unto the said part of the first part, or legal representatives, the 
sum of dollars, in the manner following:— 

It is agreed by and between the parties to this agreement, as follows :— 

1st. That for each and every day’s delay in the performance and com¬ 
pletion of this agreement, or of any extra work under it, after the said 
day of in the year one thousand eight hundred and , there shall 
be allowed and paid by said part of the first part, to said part of the 
second part, or representatives, damages for such delay if the same 
shall arise from any act or default on the part of the said part of the 
first part. 

2d. That the said part of the first part, or representatives, shall 
not be delayed in the constant progress of the work under this agreement, 
or any of the extra work under the same or connected therewith, by said 
party of the second part, or by his Superintendents or any other contractor 
employed by the said part of the second part, upon or about the prem¬ 
ises ; and for each and every day, if any, shall be so delayed, 
additional day to be allowed to pomplete the work aforesaid, from 
and after the day hereinbefore appointed for its entire comple'ion, unless 
upon the contingency provided for below in the 5th article. 

3d. That each and every person employed, by sub-contract or “ piece 


FORMS OF CONTRACTS OR AGREEMENTS. 


95 

work,” by the said part of the first part, in the providing materials or 
performing labor or works in the fulfillment or execution of this agreement, 
shall be, in the opinion of the said Superintendents, a suitable, competent, and 
satisfactory person. 

4th. That the said part of the first part shall and will engage and 
provide own cost and expense, during the progress of the works under, 
and until the completion and fulfillment of this agreement, a thoroughly 
competent “ Foreman of the Works,” whose duty it shall be to attend to the 
general supervision of all matters hereby undertaken by said part of the 
first part, and also to the correct and exact making, preparing, laying-out, 
and locating of all patterns, moulds, models, and measurements in, to, for, 
and upon the works hereby agreed upon, from and in conformity with the 
said plans and specifications, and according to the direction of said 
Architects. 

5th. That if at any time during the progress of the work the said Super¬ 
intendents shall find that said work is not carried forward with sufficient 
rapidity and thoroughness, or that the materials furnished, foreman of the 
works, sub-contractors or workmen employed by the part of the first 
part, are unsatisfactor}’, and insufficient for the completion of the work 
within the time and in the manner stipulated in the plans and specifications 
aforesaid, shall give notice of such insufficiency and defects in pro¬ 
gress, materials, foreman, sub-contractors, or workmen, to the party of the 
first part; and if within three dhys thereinafter such insufficiency and 
defects are not remedied in a manner satisfactory to —the party of the 

second part, through the agency of said Superintendents, or otherwise, may 
enter upon the work, and suspend or discharge said party of the first part, 
and all employed under him, and carry on and complete the work, by “days’ 
work,” or otherwise, as may elect, providing and substituting proper 

and sufficient materials and workmen ; and the expense thereof shall be 
chargeable to the said party of the first part, and be deducted from any sum 
which may be due to him on a final settlement; and the opinion of said 
Superintendents shall be final, and their certificate in writing conclusive evi¬ 
dence between the parties hereto, on all questions and issues arising on or 
out of this fifth article of this Agreement, subject to the final decision of the 
referees hereinafter named. 

6th. That the said part of the first part shall be solely responsible 
for any injury or damage sustained by any and all person or persons, or 
property, during or subsequent to the progress and completion of the works 
hereby agreed upon, from or by any act or default of the said part of the 
first part; and shall be responsible over the party of the second part for all 
costs and damages which said party of the second part may legally incur by 
reason of such injury or damage ; and that the said part of the first part 
shall give all usual, requisite, and suitable notices to all parties whose estates 
or premises, being adjoining those upon which the works hereby agreed upon 
are to be done, may or shall be any way interested in or affected by the per¬ 
formance of said works. 


AGREEMENT AND ASSENT. 


96 

7th. That the said part of the first part shall, from time to time, 
during the progress of said works, apply to the said Architects for all need¬ 
ful explanations of the true intent and meaning of the said plans and speci¬ 
fications ; and that “ working-plans ” shall, at the expense of the said part 
of the second part, be from time to time, and whenever requisite, furnished 
by the said Architects to the said part of the first part, upon reasonable 
notice being given to the said Architects that the same are requisite and 
needful; and further, that the said part of the first part will not and shall 
not, in the execution, performance, and fulfillment of this agreement, in any 
way deviate from the entire and exact compliance with, adherence to, and 
fulfillment of the said plans, “working-plans,” and specifications, by reason 
of any practical difficulty which, in opinion, mayor shall arise or occur; 
unless some such deviation shall, in the opinion and by the certificate of the 
said Architects, become absolutely necessary and unavoidable, in which case 
said part of the first part to make such deviation as they may be 
directed by said Architects. 

And Whereas it is the intention of the parties hereto, that the said 
part of the first part shall bear and pay all the expenses necessary for 
and incident to the carrying into full and entire execution and completion all 
the works contemplated in this agreement, it is further understood and 
agreed by and between the parties to this agreement, that in case any lien 
or liens for labor or materials shall exist upon the property or estate of the 
said part of the second part, at the time or times when by the foregoing 
terms or provisions of this agreement a payment is to be made by the said 
part of the second part to the said part of the first part, such pay¬ 
ment, or such part thereof as shall be equal to not less than double the 
amount for which such lien or liens shall or can exist, shall not be payable at 
the said stipulated time or times, notwithstanding anything to the contrary 
in this agreement contained ; and that the said part of the second part 
may and shall be well assured that no such liens do or can attach or exist 
before shall be liable to make either of the said payments. 

It is expressly understood by the part of the first part, that all the 
works described or referred to in the annexed specifications are to be exe¬ 
cuted by the said part of the first part, whether or not the said works 
are illustrated by the aforesaid plans or working-drawings ; and that said 
part of the first part to execute all works shown by the aforesaid plans 
and working-drawings, whether or not said works are described or referred 
to in the said specifications. 

If any apparent discrepancy shall be found to exist between the plans, 
working-drawings, and the specifications, the decision as to the fair construc¬ 
tion of said discrepancy, and of the true intent and meaning of the plans, 
working-drawings, and specifications, shall be made by the Architects here¬ 
inbefore named ; and said part of the first part shall provide and execute 
the said works in accordance with said decision,—with the right of a final 
decision by the referees hereinafter named,—as a part of the original works 
undertaken by said part of the first part. 


SPECIFIC A TIONS OF MA TERIALS. 


97 


And Further agreed by the parties hereto to submit, and hereby do 
submit, each, all, and every demand between them hereinafter arising, if any, 
concerning the value of any changes of, or omissions in, or additions to, the 
aforementioned plans or specifications, or concerning the manner of per¬ 
forming or completing the work, or the time or amount of any payment to 
be made under this agreement, or the quantity or quality of the labor or 
materials, or both, to be done, furnished, or provided under this agreement* 
or any other cause or matter touching the work, the materials, or the dam¬ 
ages contemplated, set forth, or referred to, in or by this agreement, or 
concerning the construction of this agreement, to the determination of 
the award of whom, or the award of a majority of whom 
being made and reported within year from the time herein¬ 

before fixed upon for the final completion of this agreement, to the Superior 
Court for the County of , the judgment thereof shall be final; 

and if either of the parties shall neglect to appear before the Arbitrator , 
after due notice given of the time and place appointed for hearing the 
parties, the Arbitrator may proceed in absence. 

In Witness Whereof, The parties aforesaid have interchangeably set 
their hands and seals the day and year first above written, to this and 
other instrument of like tenor and date. 

( Signatures .) (Seals.) 

Executed and Delivered in Presence of 


CHAPTER VII. 

CONSIDERATION. 


SECTION I. 

THE NEED OF A CONSIDERATION. 

It is an ancient and well-established rule of the common law 
prevailing in this country, that no promise can be enforced at 
law unless it rests upon a consideration; by which word is 
meant a cause or reason for the promise. If it do not, it is 
called a naked bargain y and the promisor, even if he admits his 
promise, is under no legal obligation to perform a promise that 
he made without a consideration. 

There are two exceptions to this rule. One is when the 
promise is made by a sealed instrument, or deed (every written 
instrument which is sealed is a deed). Here the law is said to 
imply a consideration; the meaning of which is that it does not 
require that any consideration should be proved. The seal 




CONSIDER A TION. 


98 

itself is said to be a consideration, or to import a considera¬ 
tion. 

The second exception relates to negotiable paper ; and is an 
instance in which the law-merchant has materially qualified the 
common law. We shall speak more fully of this exception when 
we treat of negotiable paper. 

The word “ consideration,” as it is used in this rule, has a 
peculiar and technical meaning. It denotes some substantial 
cause for the promise. This cause must be one of two things ; 
either a benefit to the promisor, or else an injury or loss to the 
promisee sustained by him at the instance and request of the 
promisor. Thus, if A promises B to pay him a thousand dollars 
in three months, and even promises this in writing, the promise 
is worthless in law, if A makes it as a merely voluntary prom¬ 
ise, without a consideration. But if B, or anybody for him, 
gives to A to-day a thousand dollars in goods or money, and 
this was the ground and cause of the promise, then it is enforce¬ 
able. And if A got nothing for his promise, but B, at the 
request of A, gave the same goods or money to C, this would 
be an equally good consideration, and the promise to pay B 
would be equally valid in law. 

This requirement of a consideration sometimes operates 
harshly and unjustly, and permits promisors to break their word 
under circumstances calling strongly for its fulfilment. Courts 
have been led, perhaps, by this, to say that the consideration is 
sufficient if it be a substantial one, although it be not an ade¬ 
quate one. This is the unquestionable rule now, and it is some¬ 
times carried very far. In one case an American court refused 
to inquire into the adequacy of the consideration,—or whether 
it was equal to the promise made upon it,—and said, if there 
was the smallest spark of consideration, it was enough, if the 
contract was fairly made with a full understanding of all the 
material facts. Still, there must be some consideration. 

SECTION II. 

WHAT IS A SUFFICIENT CONSIDERATION. 

The law detests litigation ; at least courts say so *, and there¬ 
fore they consider anything a sufficient consideration which 


A SUFFICIENT CONSIDER A TION 


99 

arrests and suspends or terminates litigation. Thus the com 
promise, or forbearance, or mutual reference to arbitration, or 
any similar settlement, of a suit, or of a claim, is a good con¬ 
sideration for a promise founded upon it. And it is no defense 
to a suit on this promise, to show that the claim or suit thus 
disposed of would probably have been found to have no founda¬ 
tion or substance. If there be an honest claim, which he who 
advances it believes to be well grounded, and which within a 
rational possibility may be so, this is enough ; the court will not 
go on and try the validity of the claim or of the suit in order to 
test the validity of a promise which rests upon its settlement; 
for the very purpose for which it favors this settlement is the 
avoidance of all necessity of investigating the claim by litiga¬ 
tion. But for reasons of public policy, no promise can be 
enforced of which the consideration was the discontinuance of 
criminal proceedings ; or any conduct by which public interests 
are harmed, as, for example, the procurement of the passage of a 
law by corrupt means. 

If any work or service is rendered to one, or for one, and he 
requested the same, it is a good consideration for a promise of 
payment; and if he makes no promise, the law will imply the 
promise, that is, will suppose that he has made it, and will not 
permit him to deny it. The rule is the same as to payment 
for goods, or property of any kind, delivered to any one at his 
request. 

No person can make another his debtor against that other’s 
will, by a voluntary offer of work, or service, or money, or 
goods. But if that other accept what is thus offered, and retain 
the benefit of it, the law will, generally, imply or presume that 
it was offered at the request of that other party, and will also 
imply his promise to pay for it, and will enforce the promise ; 
unless it is apparent, or is shown, that it was offered and received 
as a mere gift. 

A promise is a good consideration for a promise ; and it is 
one which frequently occurs in fact. 

If A says to B, “ If you will deliver goods to C, I will pay 
for them,” although there is no obligation upon B to deliver the 


IOO 


CONSIDER A TION. 


goods, if he does deliver them, he furnishes a consideration for 
the agreement, and may enforce it against A. 

An agreement by two or more parties to refer disputes or 
claims between them to arbitration, is not binding upon any of 
the parties unless all have entered into it. 

The principle, that a promise is a good consideration for a 
promise, has been sometimes applied to subscription-papers ; 
all who sign them being held on the ground that the promise of 
each is a good consideration for the promises of the rest. The 
law on the subject of these subscription-papers, and of all vol¬ 
untary promises of contribution, is substantially this : no such 
promises are binding, unless something is paid for them, or 
unless some party for whose benefit they are made,—and this 
party may be one or more of the subscribers,—at the request, 
express or implied, of the promisor, and on the faith of the sub¬ 
scriptions, incurs actual expense or loss, or enters into valid 
contracts with other parties which will occasion expense or loss. 
As the objection to these promises or the doubt about them, 
comes from the want of consideration, it may be cured by a seal 
to each name, or by one seal which is declared in the instrument 
to be the seal of each. 

It is to be regretted that the law does not regard a merely 
moral consideration as a sufficient legal consideration ; but so 
it is. Thus, it has been held in this country, that a note given 
by a father to a party who had given needful medicines, food, 
and shelter to his sick son, who was of full age, was void in law, 
because there was no legal consideration. And the same doc¬ 
trine was applied where a son made a similar promise for food 
and support to his aged father. If, in either case, the promise 
had been made before the food or other articles were supplied, 
or even a request made before the supply, then the supply of the 
food and support would have been a good consideration. But 
they had all been supplied before any request or promise, and 
nothing was left but the moral obligation of a father to compen¬ 
sate one who had supported his son, or of a son to support his 
father ; and this the law does not deem sufficient to make even 
an express promise enforceable at law. 


AN IMPOSSIBLE CONSIDERATION. 


IOI 


SECTION III. 

AN ILLEGAL CONSIDERATION. 

If the whole of a consideration, or if any part of the con¬ 
sideration of an entire and indivisible promise, be illegal, the 
promise founded upon it is void. Thus, where a note was given 
in part for the compounding of penalties and suppressing of crim¬ 
inal prosecutions, it was held to be wholly void and uncollecti¬ 
ble. And where a part of the consideration of a note was 
spirituous liquors, sold by the payee in violation of a Statute, 
such note was held to be wholly void. But if the consideration 
consists of separable parts, and the promise consists of corres¬ 
ponding separable parts, which can be apportioned and applied, 
part to part, then each illegality will affect only the promise 
resting on it; for in fact there are many considerations and many 
promises. 

If the consideration be entire and wholly legal, and the prom¬ 
ise consists of separable parts, one legal and the other illegal, 
the promisee can enforce that part which is legal. 

SECTION IV. 

AN IMPOSSIBLE CONSIDERATION. 

No contract or promise can be enforced by him who knew 
that the performance of it was wholly impossible ; and therefore 
a consideration which is obviously and certainly impossible is 
not sufficient in law to sustain a promise. But if one makes a 
promise, he cannot always defend himself when sued for non¬ 
performance by showing that performance was impossible ; for 
it may be his own fault, or his personal misfortune, that he 
cannot perform it. He had no tight to make such a promise, 
and must answer in damages ; or if he had a right to make it in 
the expectation of performance, and this has become impossible 
subsequently,—as by loss of property, for example,—this is his 
misfortune, and no answer to a suit on the promise. There are, 
however, obviously, promises or contracts, which, from their 
very nature, must be construed as if the promisor had said, “ I 
will do so and so, if I can.” For example, if A promises to 


102 


CO NS ID ERA TION. 


work for B one year, at $20 a month, and at the end of six 
months is wholly disabled by sickness, he is not liable to an 
action by B for breach of his contract; and he can recover his 
pay for the time that he has spent in B’s service. A mere want 
of money, which makes a pecuniary impossibility, is not regarded 
by the law as a legal impossibility. 

SECTION V. 

FAILURE OF CONSIDERATION. 

If a promise be made upon a consideration which is appar¬ 
ently valuable and sufficient, but which turns out to be nothing ; 
or if the consideration was originally good, but becomes wholly 
valueless before part performance on either side, there is an end 
of the contract, and the promise cannot be enforced. And if 
money were paid on such a consideration, it can be recovered 
back, but only the sum paid can be recovered without any 
increase or addition as compensation for the plaintiff’s loss and 
disappointment, unless there were fraud or oppression. 

If the failure of consideration be partial only, leaving a sub¬ 
stantial, though far less valuable, consideration behind, this may 
still be a sufficient foundation for the promise, if that be entire. 
The promisor may then be sued on the promise; but he will 
then be entitled, by deduction, set-off, or in some other proper 
way, to due allowance or indemnity for whatever loss he may 
sustain as to the other parts of the bargain, or as to the whole 
transaction, from the partial failure of the consideration. Thus, 
if he promised so much money for work done in such a way, or as 
the price of a thing to be made and sold to him, if no work is done, 
or the thing is not made or sold, there is an end of the promise, 
because the consideration has failed. But if the work was done, 
but not as it should have been, or the thing made and sold, but 
not what it should have been, and the promisor accepted the 
work or the thing, he may now show that the consideration for 
his promise has partially failed, and may have a proportionate 
reduction in his promise, or in the amount he must pay. And 
if the promise be itself separable into parts, and a distinct part 
or proportion of the consideration failed, to which part some 


FAILURE OF CONSIDERATION. 


103 

distinct part or proportion of the promise could be applied, that 
part of the promise cannot be enforced, although the residue of 
the promise may be. 

If A agrees with B to work for him one year, or any stated 
time, for so much a month, or so much for the whole time, and, 
after working a part of the time, leaves B without good cause, 
it is the ancient and still prevailing rule, that A can recover 
nothing in any form or way. It has, however, been held in New 
Hampshire, that A can still recover whatever his services are 
worth, B having the right to set off or deduct the amount of 
any damage he may have sustained from A’s breach of the con¬ 
tract. This view seems just and reasonable, although it has not 
been supported by adjudication in other States. If A agrees to 
sell to B five hundred barrels of flour at a certain price, and, after 
delivering one-half, refuses to deliver any more, B can certainly 
return that half, and pay A nothing. But if B chooses to retain 
that half, or if he has so disposed of or lost it that he cannot 
return it, he must pay what it is worth, deducting all that he 
loses by the breach of the contract. And this case we think 
analogous to that of a broken contract of service; but B’s lia¬ 
bility to pay, even in the case supposed as to goods, has been 
denied by some courts. 

A difficulty sometimes arises where A, at the request of B, 
undertakes to do something for B, for which he is to be paid a 
certain price; and in doing it he departs materially from the 
directions of B and from his own undertaking. What are now 
the rights of the parties ? This question arises most frequently 
in building contracts, in which there is usually some departure 
from the original undertaking. The general rules are these: 
If B assent to the alteration, it is the same thing as if it were a 
part of the original contract. He may assent expressly, by word 
or in writing; or constructively, by seeing the work, and approv, 
ing it as it goes on, or being silent; for silence under such 
circumstances would generally be equivalent to an approval. 
But if the change be one which B had a right, either from the 
nature of the change, or the appearance of it, or A’s language 
respecting it, to suppose would add nothing to the cost, then no 
promise to pay an increased price would be inferred from either 


104 


BONDS. 


an express or tacit approval. Generally, as we have seen, if A 
does or makes what B did not order or request, B can refuse to 
accept it, and, if he refuses, will not then be held to pay for it. 
But if he accepts it, he must pay for it. This consequence 
results, however, only from a voluntary acceptance. For if A 
choose, without any request from B, to add something to B’s 
house, or make some alteration in it, which being done cannot 
be undone or taken away without detriment to the house, B may 
hold it, and yet not be liable to pay for it; and A has no right 
to take it away, unless he can do so without inflicting any injury 
whatever on B. This rule would apply whether the addition or 
alteration were larger or smaller. 

It is sometimes provided in building contracts that B shall 
pay for no alteration or addition, unless previously ordered by 
him in writing. But if there be such provision, B would be 
liable for any alteration or addition he ordered in any way, or 
voluntarily accepted after it was made, when he could have 
rejected it. 

So it is sometimes agreed that any additions or alterations 
shall be paid for at the same rate as the work contracted for. 
The law would imply this agreement if the parties did not make 
it expressly. 


CHAPTER VIII. 

BONDS. 

A bargain where both parties make promises, and come 
under obligations, each to the other, may be made without seal, 
and would then be called an Agreement. If made under seal, 
it would generally be in the form of, and bear the name of, an 
Indenture. If a promise by one only, is made in writing, with¬ 
out a seal, it is a simple promise ; but if it be made with a seal, 
then it would generally be in the form of, and bear the name 
of, a Bond. 

The essentials of a bond are only that one party should 
acknowledge himself “held, bound, and obliged” unto another 
party, to pay to him a sum of money; and neither of the words 




BONDS. 


105 

“held,” or “bound,” or “obliged,” are strictly necessary, al¬ 
though usual and proper: other words of the same meaning will 
have the same effect. In such a bond, the party bound is called 
the obligor , and the party to whom he is bound is called the 
obligee. The sum for which the obligor is bound is called the 
penal sum, or the penalty. Such a bond is simply an obligation 
to pay so much money. But a bond is not often given only for 
this purpose. It is usually intended to be, in fact, an obligation 
to do something else, on the penalty of paying so much money if 
it be not done. This something else may be anything what¬ 
ever which the obligor may contract to do. All this is contained 
in an addition, which is w.ritten on the same paper immediately 
after the bond itself; that is, after the words of obligation. 
And this is called the “Condition” of the bond. It begins with 
saying, This bond is on the condition following; and then recites 
the things which the obligor has undertaken to do; and then 
adds, that if all these things are fully done and performed, then 
the bond shall be void and of no effect, and otherwise shall 
remain in full force. 

The meaning and effect of all this is, that if the obligor fails, 
in any respect, to do what the condition recites, then he is bound 
to pay the money he acknowledges himself, in the bond, bound 
to pay. But now the law comes in to mitigate the severity of 
this contract. And whatever be the sum which the obligor 
acknowledges himself, in the bond, bound to pay, he is held by 
the courts to pay to the obligee only that amount which will be 
a complete indemnification to him for the damage he has sus¬ 
tained by the failure of the obligor to do what the condition 
recites. 

For example: suppose A B makes a bond to C D, acknowl¬ 
edging himself bound to C D in the sum of ten thousand dol¬ 
lars. The condition recites that one E F has been hired by 
C D as his clerk, and that A B guarantees the good conduct of 
E F; and if E F does all his duty honestly and faithfully, then 
the bond is void, and otherwise remains in full force. Then 
suppose E F to cheat C D out of some money. A B is sued on 
the bond; C D cannot recover from him, in any event, more 
than the ten thousand dollars; and he will in fact recover from 


io 6 


BONDS. 


him only so much of this as will make good to C D all the loss he 
has sustained by E F’s misconduct. As the obligee can recover 
from the obligor only actual compensation for what he loses, it 
is usual, in practice, to make the penal sum in the bond large 
enough to cover all the loss that can happen. 

There need be no “consideration,” alleged or asserted in the 
bond, or proved, because, in the language of the law, the seal is 
(or implies) a consideration. 

The following forms are those of bonds frequently given; 
and it will be easy to frame from some one of them any bond 
that is wanted for other purposes. 

( 25 .) 

A Simple Bond, without Condition. 

Know all Men by these Presents, That I ( the obligor) am 

held and firmly bound unto {the obligee) in the sum of 

lawful money of the United States of America, to be paid to the said 
or his certain attorney, or assigns ; 

to which payment well and truly to be made, I bind myself, my heirs, 
executors, and administrators, firmly 

by these presents. 


In Testimony Whereof, I have set my hand and 

seal to this instrument, on the day of , in the year 

of our Lord eighteen hundred and 

{Witnesses) {Signature) {Seal) 

Executed and Delivered in Presence of 

( 26 .) 

Bond for Payment of Money, with a Condition to that 
Effect, with Power of Attorney to confess Judgment 
annexed. 

Know all Men by these Presents, That held 

and firmly bound unto in the sum of 

lawful money of the United States of America, to be paid to the said 

or his certain attorney, executors, administrators, or assigns : to which 
payment well and truly to be made, heirs, executors, 

and administrators, firmly by these presents. Sealed 

with seal Dated the day of 

in the year of our Lord one thousand eight hundred and 


FORMS OF BONDS. 


107 

The Condition of this Obligation is such, That if the above bounden 
heirs, executors, administrators, or any of them 
shall and do well and truly pay, or cause to be paid, unto the above-named 

certain attorney, executors, administrators, or 

assigns, the just sum of 
dollars, 

without any fraud or further delay, then the above obligation to be void, or 
else to be and.remain in full force and virtue. 

{Signature) {Seal) 

Sealed and Delivered in the Presence of 

To } Esq., Attorney of the Court of Common Pleas , at 

in the County of , in the State of f or to any 

other Attorney of the said Court , or of any other Court , there or elsewhere. 

Whereas, {the obligor ) in and by a certain obligation 

bearing even date herewith, do stand bound unto {the obligee) 

in the sum of lawful money of the United States of Amer¬ 

ica, conditioned for the payment of 

These are to desire and authorize you, or any of you, to appear for 

heirs, executors, or administrators, in the said court or elsewhere, in 
an action of debt, there or elsewhere brought, or to be brought, against me, 
or my heirs, executors, or administrators, at the suit of the said {the 

obligee ) executors, administrators, or assigns, on the said obligation, as of 

any term or time past, present, or any other subsequent term or time there or 
elsewhere to be held, and confess judgment thereupon against me, or my heirs, 
executors, or administrators, for the sum of 

lawful money of the United States of America, debt, besides costs of suit, in 
such manner as to you shall seem meet: and for your, or any of your so doing, 
this shall be your sufficient warrant. And I do hereby for myself, and for 
my heirs, executors, and administrators, remise, release, and forever quitclaim 
unto the said {the obligee) or his certain attorney, executors, 

administrators, and assigns, all and all manner of error and errors, mispris¬ 
ions, misentries, defects, and imperfections whatever, in the entering of the 
said judgment, or any process or proceedings thereon or thereto, or anywise 
touching or concerning the same. 

In Witness Whereof, have hereunto set hand 

and seal , the day of , in the year of 

our Lord one thousand eight hundred and 

{Signature) {Seal) 

Sealed and Delivered in the Presence of 

( 27 .) 

Bond for Conveyance of a Parcel of Land. 

Know all Men by these Presents, That we, 
as principals, and as sureties, are holden and stand 


io8 


BONDS. 


firmly bound unto in the sum of 

dollars, to the payment of which to the said or 

executors, administrators, or assigns, we hereby jointly and severally bind 
ourselves, our heirs, executors, and administrators. 

The Condition of this obligation is such that whereas the said obligors 
have agreed to sell and convey unto the said obligee a certain parcel of real 
estate situated and bounded as follows, namely : 

The same to be conveyed by a good and sufficient (warranty or other ) deed 
of the said obligors, conveying a good and clear title to the same, free from 
all incumbrances. 

And whereas, for such deed and conveyance it is agreed that the said 
obligee shall pay the sum of dollars, of which 

dollars are to be paid in cash upon the delivery of said deed, and the 
remainder by the note of the said obligee, bearing interest 

at per cent, per annum, payable semi-annually, and secured by a 

mortgage in the usual form upon the said premises, such note 
to be (describe the note) 

Now, therefore, if the said obligors shall upon tender by the said obligee 
of the aforesaid cash, note , and mortgage at any time within 
from this date, deliver unto the said obligee a good and sufficient deed as 
aforesaid, then this obligation shall be void, otherwise it shall be and remain 
in full force and virtue. 

In Witness Whereof, We hereunto set our hands and seals this 
day of A.D. 18 

Signed and Sealed in Presence of 


( 28 .) 

Bond for a Deed of Land, with Acknowledgment before 

Notary Public. 

Know all Men by these Presents, That 
of the County of and State of held 

and firmly bound to of in the sum of 

dollars, to be paid to said his 

executors, administrators, or assigns, to the payment whereof 
bind sel heirs, executors, and administrators, firmly by 

these presents, sealed with seal, and dated the day of 

A.D. 18 . 


The Condition of this Obligation is, That if the 

said upon payment of dollars, and 

interest, by said within years from this 

date, agreeably to note of even date herewith, shall convev to 

sa ^ an d heirs forever, a certain tract of land, situ¬ 
ated in the County of and State of to wit: 


FORMS OF BONDS. 


109 


by a deed in common form duly executed and acknowl¬ 
edged, and in the meantime shall permit said to occupy 

and improve said premises for own use, then this obligation shall 

be void, otherwise to remain in full force and effect. 


In Testimony Whereof, have hereunto set hand 

and seal , the day and year first above written. 

( Signature .) (Seal.) 

State of 
County of 

Be it Remembered, That on this day of 

eighteen hundred and , before me, the undersigned, Notary 

Public in and for said County and State, duly commissioned and qualified, 
came who to be the same person whose name 

subscribed to the foregoing instrument of writing, as party thereto, 
and acknowledged the same to be act and deed for the 

purpose therein mentioned. 

In Testimony Whereof, I have hereunto set my hand and affixed my 
official seal, at my office, in the City of , the day and year 

last aforesaid. 

Notary Public. 



( 29 .) 


Bond in another Form, for Conveyance of Land, with 
Acknowledgment. 

Know all Men by these Presents, That 
of in the County of and State of held and 

firmly bound unto of in the County of and 

State of in the penal sum of dollars, 

for the payment of which sum, well and truly to be made to 
heirs, executors, and administrators, I bind myself, my heirs, executors, and 
administrators, firmly by these presents. 

Sealed with my seal and dated this day of A.D. 18 

The Condition of the above Obligation is such, That whereas the said 
this day has given the said 
promissory note of even date herewith 


Now, if, on payment of the said note being made on or before the time 
shall become due, and all taxes on the 

land hereinafter described having been paid by the said 
and no right of pre-emption having been established or claimed on the said 
land, or any part thereof, the said or his legal represen¬ 

tatives, shall, whenever thereunto afterwards requested, execute and deliver 
to the said or legal representatives, a good 


no 


BONDS. 


and sufficient deed, conveying to the 

{here describe the land) 

free and clear of all incumbrance then this obligation to be 

null and void, otherwise of full force and effect, it being distinctly understood 
and agreed by and between the parties hereto that the time of payment herein 
above fixed material and of the essence of this contract, 

and that in case of failure therein, the intervention of equity is forever 
barred. 

(Signatures (Seals.) 

Signed\ Sealed\ and Delivered in Presence of 


State of 
County of 

I, in and for the said county, in the State 

aforesaid, do hereby certify that personally known to me 

as the same person whose name subscribed to the above 

bond for deed, appeared before me this day, in person, and acknowledged that 
he signed, sealed, and delivered the said bond as free and 

voluntary act, and for the use and purpose therein set forth. 

Given under my hand and seal, this day of 

4. D. 18 . 



(30.) 


Notary Public. 


Bond to Corporation for Payment of Money due for Contri¬ 
bution to Capital Stock, with Power of Attorney to confess 
Judgment. 


Know all Men by these Presents, That 

held and firmly bound unto 
(name of the corporationi) in the sum of lawful 

money of the United States of America, to be paid to 

aforesaid, their certain attorney, successors or assigns. To which payment 
well and truly to be made, firmly by these presents. 

Sealed with seal . Dated the day of in the 

year of our Lord one thousand eight hundred and 

The Condition of this Obligation is such, That if the above bounden 
heirs, executors, and administrators, or any of them, 
shall and do well and truly pay, or cause to be paid unto the above-named 
their certain attorney, successors or assigns, the just 
sum of such as abovesaid, at any time within 

years from the date hereof, together with lawful interest for the same, in like 
money, payable monthly, on the of each and every month 

hereafter, and shall also well and truly pay, or cause to be paid unto 

aforesaid, their successors or assigns, the sum of 
dollars, on the said of 


FORMS OF BONDS. 


111 

ach atud every month hereafter, as and for the monthly contribution on 

share of the capital stock of aforesaid, 

now owned by the said without 

any fraud or further delay; provided, however, and it is hereby expressly 
agreed, that if at any time default shall be made in the payment of the said 
principal money when due, or of the said interest, or the monthly contribu¬ 
tion on said stock, for the space of after any payment thereof 

shall fall due, then and in such case, the whole principal debt 

aforesaid shall, at the option of aforesaid, their successors 

and assigns, immediately thereupon become due, payable, and recoverable, 
and payment of said principal sum and all interest thereon, as well as any 
contribution on said share of stock then due, may be 

enforced and recovered at once, anything hereinbefore contained to the con¬ 
trary thereof notwithstanding. And the said for 

heirs, executors, administrators, and assigns, hereby expressly waive and 
relinquish unto aforesaid, their successors and assigns, 

all benefit that may accrue to by virtue of any and every law, 

made or to be made, to exempt the premises described in the indenture of 
mortgage herewith given, or of any other premises whatever, from levy and 
sale under execution, or any part of the proceeds arising from the sale 
thereof, from the payment of the moneys hereby secured, or any part thereof, 
then the above obligation to be void, or else to be and remain in full force 
and virtue. 

( Signatures .) {Seals.) 

Executed and Delivered in Presence of 


To Esquire , Attorney of the Court of Common Pleas at in 

the County of in the State of or to any other Attorney. or 

to the Prothonotary of the said Court , or of any other Court , there or elsewhere. 

Whereas, in and by a certain obligation, 

bearing even date herewith, do stand bound unto in the 

sum of lawful money of the United States of America, 

conditioned for the payment of the just sum of such 

as abovesaid, at any time within years from the date thereof, 

together with lawful interest for the same in like money, payable monthly, 
on the of each and every month thereafter, and should also well 

and truly pay or cause to be paid unto aforesaid, 

their successors or assigns, the sum of dollars, on the 

of each and every month thereafter, as and for the monthly 
contribution on share of the capital stock of 

aforesaid, now owned by the said without 

any fraud or further delay; provided, however, and it is thereby expressly 
agreed, that if at any time default should be made in the payment of the said 
principal money when due, or of the said interest, or the monthly contribu* 
tion on said stock, for the space of after any payment thereof 

should fall due, then and in such case 

the whole principal debt aforesaid should at the option of 


ASSIGNMENTS. 


112 

aforesaid, their successors and assigns, immediately thereupon become due, 
payable, and recoverable, and payment of said principal sum, and all interest 
thereon, as well as any contribution on said 

share of stock then due, might be enforced and recovered at once, any¬ 
thing thereinbefore contained to the contrary thereof notwithstanding. And 
the said heirs, executors, administrators, and assigns, 

thereby expressly waive and relinquish unto aforesaid, 

their successors and assigns, all benefit that might accrue to by 

virtue of any and every law, made or to be made, to exempt the premises 
described in the indenture of mortgage therewith given, or of any other 
premises whatever, from levy and sale under execution, or any part of the 
proceeds arising from the sale thereof, from the payment of the moneys 
thereby secured, or any part thereof. These are to desire and authorize you, 
or any of you, to appear for heirs, executors, or 

administrators, in the said court or elsewhere, in an action of debt, there or 
elsewhere brought or to be brought, against heirs, 

executors, or administrators, at the suit of aforesaid, 

their successors or assigns, on the said obligation, as of any term or time 
past, present, or any other subsequent term or* time, there or elsewhere to be 
held, and confess or enter judgment thereupon against 

heirs, executors, or administrators, for the sum of 
lawful money of the United States of America, 
debt, besides cost of suit, in such manner as to you shall seem meet; and 
for your or any of your so doing this shall be your sufficient warrant. And 
heirs, executors, and administrators, remise, release, 
and forever quit claim, unto aforesaid, their certain 

attorney, successors, and assigns, all and all manner of error and errors, mis¬ 
prisons, misentries, defects, and imperfections whatever, in the entering of 
the said judgment, or any process or proceedings thereon or thereto, or any¬ 
wise touching or concerning the same. 

In Witness Whereof, have hereunto set hand 

and seal the day of in the year of our Lord 

one thousand eight hundred and 

( Signatures .) (Seals.) 

Sealed and Delivered in Presence of 


CHAPTER IX. 

ASSIGNMENTS. 

The word “ assign ” usually occurs in almost all forms of 
transfer and conveyance; but there are certain instruments to 
which the name of “ Assignment ” is more particularly given. 



FORMS OF ASSIGNMENTS. 


113 

They are instruments by which other instruments or debts or 
obligations, as bonds, judgments, wages, and the like, are trans¬ 
ferred. Sometimes they are written on the backs of, or elsewhere 
on the same paper with, the instruments to be transferred by the 
assignment. Some of these, as assignments of deeds of grant 
and conveyance, of mortgages, of leases, will be given in the 
chapters which treat of those topics. Here are given such 
forms as will enable one to make an assignment for any of the 
purposes for which assignments are usually made. 


( 31 .) 

Brief Form of an Assignment to be indorsed on a Note, or 
any Similar Promise or Agreement. 

I Hereby, for value received, assign and transfer the within written (or 
the above written ) , together with all my interest 

in and all my rights under the same, to (na?ne of the Assignee). 

(Signature) 


( 32 .) 


A G-eneral Assignment, with Power of Attorney. 

Know all Men by these Presents, That I for 

value received, have sold, and by these presents do grant, assign, and con¬ 
vey unto (name of the assignee and description 

of the things assigned) 

To Have and to Hold the same unto the said 
executors, administrators, and assigns forever, to and for the use of 

hereby constituting and appointing my true and 

lawful attorney irrevocable in my name, place, and stead, for the purposes 
aforesaid, to ask, demand, sue for, attach, levy, recover, and receive all such 
sum and sums of money which now are, or may hereafter become due, owing 
and payable for or on account of all or any of the accounts, dues, debts, 
and demands above assigned giving and granting unto the 

said attorney, full power and authority to do and perform all and every act 
and thing whatsoever requisite and necessary, as fully, to all intents and 
purposes, as might or could do, if personally present with full 

power of substitution and revocation, hereby ratifying and confirming al 
that the said attorney or substitute shall lawfully do or cause to be 

done by virtue hereof. 

In Witness Whereof, I have hereunto set my hand and seal the 
day of , one thousand eight hundred and 


Executed and Delivered in the Presence of 

8 


(Signature) (Seal.) 


ASSIGNMENTS. 


114 

( 33 .) 

Assignment of a Bond, 

Know all Men by these Presents, That 
in the hereunto annexed obligation named, for and in consideration of the 
sum of lawful money of the United States of America, unto 

well and truly paid by at the time of the execu¬ 
tion hereof, the receipt whereof hereby acknowledge, have assigned, 

transferred, and set over, and by these presents, do assign, transfer, and set 
over unto the said ( assignee ) his executors, administrators, and assigns, to 
and for his and their only proper use and behoof, the said hereunto annexed 
obligation, which is given and executed by to bearing 

date the day of Anno Domini 18 , to secure the payment 

of the sum of with lawful interest therein-expressed, and all 

moneys, both principal and interest, thereon due and payable, or hereafter 
to grow due and payable, with the warrant of attorney to the said obligation 
annexed: together with all rights, remedies, incidents, and appurtenances 
whatsoever thereunto belonging, or in anywise appertaining, and all 
right, title, and interest therein. 

In Witness Whereof, the said have hereunto set 

hand and seal , this day of Anno Domini 

one thousand eight hundred and 

Sealed and Delivered in the Presence of ns y 

( 34 .) 

Assignment of a Bond, with Power of Attorney, and a 

Covenant. 

Know all Men by these Presents, That 
of the first part, for and in consideration of the sum of lawful 

money of the United States of America, to in hand paid by 

of the second part, at or before the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, ha bargained, sold, and 
assigned, and by these presents do bargain, sell, and assign, unto the said 
party of the second part, executors, administrators, and assigns, a 

certain written bond or obligation and conditions thereof, bearing date the 
day of one thousand eight hundred and 

executed by 

and all sum and sums of money due, and to grow due thereon : and the said 
party of the first part do covenant with the said party of the second part, 
that there is now due on the said bond or obligation, according to the condi¬ 
tions thereof, for principal and interest, the sum of and do 

hereby authorize the said party of the second part, in name to ask, 

demand, sue for, recover, receive, and enjoy, the money due and that may 
grow due thereon, as aforesaid. 


FORMS OF ASSIGNMENTS. 


115 

In "Witness Whereof, have hereunto set hand and seal 

the day of one thousand eight hundred and 

Sealed and Delivered in the Presence of 

( 35 .) 

Assignment of a Judgment, in the Form of an Indenture. 

This Indenture, Made the day of one thousand 

eight hundred and between ( assignor ) of the first part, 

and ( assignee ) of the second part. 

Whereas, The said part of the first part one thousand 

eight hundred and recovered by judgment 

in the {name of court) against one the sum of 

Now this Indenture Witnesseth, That the said part of the first part, 
in consideration of to duly paid, ha 

sold and by these presents do assign, transfer, and set over unto the said 
part of the second part, and assigns, the said judgment, and all 

sum and sums of money that may be had or obtained by means thereof, or 
on any proceedings to be had thereupon. And the said part of the first 
part, do hereby constitute and appoint the said part of the second part, 
and assigns, true and lawful attorney, irrevocable, with 

power of substitution and revocation for the use, and at the proper costs 
and charges of the said part of the second part, to ask, demand, and receive, 
and to sue out executions, and take all lawful ways for the recovery of the 
money due or to become due on the said judgment: and on payment to 
acknowledge satisfaction, or discharge the same. And attorneys one or 
more under for the purpose aforesaid, to make and substitute, 

and at pleasure to revoke ; hereby ratifying and confirming all that 
said attorney or substitute shall lawfully do in the premises. And the said 
part of the first part do covenant, that there is now due on the said judg¬ 
ment the sum of and that will not collect or receive 

the same, or any part thereof, nor release or discharge the said judgment, 
but will own and allow all lawful proceedings therein, the said part of the 
second part saving the said part of first part, harmless of and from any 
costs in the premises. 

In Testimony Whereof, The part of the first part, ha hereunto set 
hand and seal the day and year first above written. 

(Seals.) 

Sealed and Delivered in the Presetice of 

( 36 .) 

Assignment of Wages, with Power of Attorney. 

Know all Men by these Presents, That I 
of in the County of in consideration of 

to me paid by of the receipt whereof I do hereby* 


i6 


SALES OF PERSONAL PROPERTY. 


acknowledge, do hereby assign and transfer to said all 

claims and demands which I now have, and all which, at any time between 
the date hereof and the " day of next, I may and shall 

have against for all sums of money due, and for all sums of money 

and demand which, at any time between the date hereof and the said 
day of next, may and shall become due to me, for services as 

to have and to hold the same to the said his executors, administrators, 
and assigns forever. 

And I, do hereby constitute and appoint the said 

and his assigns to be my attorney irrevocable in the premises, to do and 
perform all acts, matters, and things touching the premises, in the like 
manner to all intents and purposes as I could if personally present. 

In Witness Whereof, I have set my hand and seal, this 
day of 18 . 

{Seal.) 

Signed\ Sealed ' and Delivered in Presence of 


CHAPTER X. 

SALES OF PERSONAL PROPERTY. 


SECTION I. 

WHAT CONSTITUTES A SALE. 

It is important to distinguish carefully between a sale and 
an agreement for a future sale. This distinction is sometimes 
overlooked; and hence the phrase “an executory contract of 
sale/’ that is, a contract of sale which is to be executed here¬ 
after, has come into use; but it is not quite accurate to speak 
of this as if it were a sale. Every actual sale is an executed 
contract, although payment or delivery may remain to be made. 
There may be an executory contract for sale, or a bargain that 
a future sale shall be made; but such a bargain is not a present 
sale; nor does it confer upon either party the rights or the 
obligations which grow out of the contract of sale. 

A sale of goods is the exchange thereof for money. More 
precisely, it is the transfer of the property in goods from a 
seller to a buyer, for a price paid, or to be paid, in money. It 
differs from an exchange, in law ; for that is the transfer of 




WHAT CONSTITUTES A SALE. 


ii 7 

chattels for other chattels ; while a sale is the transfer of chat¬ 
tels for money, which is the representative of all value. 

Here we must pause to speak of the legal meaning of the 
word “property.” It is seldom or never used in the law as it 
is in common conversation, to mean the things themselves 
which are bought, or sold, or owned. Because in law it means 
the ownership of the things, and not the things themselves. 

If a bargain transfers the property in (which means the 
ownership of) the thing to another person for a price, it is a 
sale ; and if it does not transfer the property, it is not a sale ; 
and, on the other hand, if it be not a. sale, it does not transfer 
the property. As soon as a thing is sold the buyer owns it, 
wherever it may be. And to constitute a sale at common law, 
all that is necessary is the agreement of competent parties that 
the property in (or ownership of) the subject-matter shall then 
pass from the seller to the buyer for a fixed price. 

The sale is made when the agreement is made. The com¬ 
pletion of the sale does not depend upon the delivery of the 
goods by the seller, nor upon the payment of the price by the 
buyer. By the mutual assent of the parties to the terms of the 
sale, the buyer acquires at once the property and all the rights 
and liabilities of property; so that, in case of any loss or depre¬ 
ciation of the articles purchased, the buyer will be the 
sufferer; and he will be the gainer by any increase in their 
value. 

It is, however, a presumption of the law, that the sale is to 
be immediately followed by payment and delivery, unless other¬ 
wise agreed upon by the parties. If, therefore, nothing appears 
but a proposal and an acceptance, and the vendee departs with¬ 
out paying or tendering the price, the vendor may elect to 
consider it no sale, and may, therefore, if the buyer comes at a 
later period and offers the price and demands the goods, refuse 
to let him have them. But a credit may be agreed on expressly, 
and the seller will be bound by it; and so he will be if the credit 
is inferred or implied from usage or from the circumstances of 
the case. And if there be a delivery and acceptance of the 
goods, or a receipt by the seller of earnest, or of part payment, 
the legal inference is that both parties agree to hold themselves 


118 


SALES OF PERSONAL PROPERTY. 


mutually bound by the bargain. Then the buyer has either the 
credit agreed upon, or such credit as from custom or the nature 
or circumstances of the case is reasonable. But neither deliv¬ 
ery, nor earnest, nor part-payment, is essential to the com¬ 
pletion of a contract of sale. They only prevent the seller 
from rescinding the contract of sale without the consent of the 
purchaser. Their effect upon sales under the provisions of the 
Statute of Frauds will be considered in the chapter on that sub¬ 
ject. It may also be said that no one can be made to buy of 
another without his own assent. Thus, if A sends an order to B 
for goods, and C sends the.goods, he cannot sue for the price, if 
A repudiates the sale, although C had bought B’s business. 

The seller (if no delivery with credit for the price is agreed 
on) has a right to retain possession of the property sold until 
the price is paid. This right is called a lien , which means the 
right of retaining possession of property until some charge upon 
it, or some claim on account of it, is satisfied. It rests, there¬ 
fore, on possession. Hence the seller (and every other person 
who has a lien) loses it by voluntarily parting with the posses¬ 
sion, or by a delivery of the goods. And it is a delivery for 
this purpose, if he delivers a part without any purpose of sever¬ 
ing that part from the remainder; or if he make a symbolical 
delivery which vests this right and power of possession in the 
buyer, as by the delivery of the key of a warehouse in which 
they are locked up. 

If the seller delivers the goods to the buyer, as he thereby 
loses his lien, he cannot afterwards, by virtue of this lien, retake 
the goods and hold them. But if the delivery was made with 
an express agreement that non-payment of the price should 
revest the property in the seller, this agreement may be valid, 
and the seller can reclaim the goods from the buyer if the price 
be not paid. 

If the buyer neglect or refuse to take the goods and pay 
the price within a reasonable time, the seller may resell them 
on notice to the buyer, and look to him for the deficiency by way 
of damages for the breach of the contract. The seller, in 
making such resale, acts as agent or trustee for the buyer; and 
his proceedings will be regulated and governed by the rules 


WHA T CONSTITUTES A SALE . 


119 

usually applicable to persons acting in those capacities; and the 
principal one of these is, that he will be held to due care and 
diligence, and to perfect good faith. 

Certain consequences flow from the rules and principles 
already stated which should be noticed. Thus, if the party to 
whom the offer of sale is made accepts the offer, but still 
refuses or neglects to pay the price, and there are no circum¬ 
stances indicating a credit, or otherwise justifying the refusal 
or neglect, the seller may, as we have said, disregard the accept¬ 
ance of his offer, and consider the contract as never made, or 
as rescinded. It would, however, be proper and prudent on the 
part of the seller expressly to demand payment of the price 
before he treated the sale as null; and a refusal or neglect 
would then give him at once a right to hold and treat the goods 
as his own. So, too, if the seller unreasonably neglected or 
refused to deliver the goods sold, and especially if he refused to 
deliver them, the buyer thereby acquires the right to consider 
that no sale was made, or that it has been avoided (or annulled). 
But neither party is bound to exercise the right thus acquired 
by the refusal or neglect of the other, but may consider the sale 
as complete; and the seller may sue the buyer for non-pay¬ 
ment, or the buyer may sue the seller for non-delivery. 

If the seller has merely the right of possession, as if he 
hired the goods; or if he has the possession only, as if he stole 
them, or found them, he cannot sell them and give good title to 
the buyer against the owner; and the owner may therefore 
recover them even from an honest purchaser who was wholly 
ignorant of the defect in the title of him from whom he bought 
them. This follows from the rule above stated, that only he 
who has in himself a right of property can sell a chattel, 
because the sale must transfer the right of property from the 
seller to the buyer. The only exception to the above rule is 
where money, or negotiable paper transferable by delivery 
(which is considered as money), is sold or paid away. In either 
case, he who takes it in good faith, and for value, from a thief 
or finder, holds it by good title. But if the owner once sold 
the thing, although he was deceived and induced to part with 
his property through fraud, he cannot reclaim it from one who 
in good faith buys it from the fraudulent party. 


120 


SALES 0E PERSONAL PROPERTY. 


If anything remains to be done by the seller, to or in rela¬ 
tion to the goods sold, for their ascertainment, identification, or 
completion, the property in the goods does not pass until that 
thing is done, and there is as yet no completed sale. There¬ 
fore, if there be a bargain for the sale of specific goods, but 
there remains something material which the seller is to do to 
them, and they are casually burnt or stolen, the loss is the sell¬ 
er’s, because the property (or ownership) had not yet passed to 
the buyer. 

So, if the goods are a part of a large quantity, they remain 
the seller’s until selected and separated; and even after that, 
until recognized and accepted by the buyer, unless it is plain 
from words or circumstances that the selection and separation 
by the buyer are intended to be conclusive upon both parties. 

If repairing or measuring or counting must be done by the 
seller before the goods are fitted for delivery or the price can 
be determined, or their quantity ascertained, they remain, until 
this be done, the seller’s. And where part is measured and 
delivered this part passes to the vendee, but the portion not so 
set apart does not. But if the seller delivers them and the 
buyer accepts them, and any of these acts remain to be done, 
these acts will not be considered as belonging to the contract 
of sale, for that will be regarded as completed, and the owner¬ 
ship of the goods will have passed to the buyer, and these acts 
will be taken only to refer to the adjustment of the final settle¬ 
ment as to the price. 

Thus, a purchaser offers a nurseryman a dollar apiece for two 
hundred out of a row of two thousand trees, which are all alike, 
and the offer is accepted. This is no sale, because any two 
hundred may be delivered, and therefore the property or owner¬ 
ship of any specific two hundred does not pass. But if the 
purchaser or seller had said the first two hundred in the row, or 
the last, or every third tree, or otherwise indicated the specific 
trees, there would have been a sale, and by the sale those specific 
trees would have become at once the trees of the buyer. The 
seller would dig up and deliver them as the buyer’s trees, and 
if they were burned up by accident an hour after the sale, and 
before digging, the buyer would lose the trees. If not specified. 


DELIVERY AND ITS INCIDENTS. 


121 


however, even if they were paid for, they remain the property 
of the nurseryman, because, instead of an actual sale, there is 
only a bargain that he will select two hundred from the lot, and 
take up and deliver them. And if they are destroyed before 
delivery, this is the loss of the nurseryman. 

Moreover, it is to be noticed that a contract for a future sale 
to take place either at a future point of time, or when a certain 
event happens, does not, when that time arrives, or on the hap¬ 
pening of the event, become of itself a sale, transferring the 
property. The party to whom the sale was to be made does 
not then acquire the property, and cannot by tendering the 
price acquire a right to possession; but he may tender the 
price, or whatever else would be the fulfillment of his obliga¬ 
tion, and then sue the owner for his breach of contract, if he will 
not deliver the goods. But the property in the goods remains 
in the original owner. 

For the same reason that the property in the goods must 
pass by a sale, there can be no actual sale of any chattel or 
goods which have no existence at the time. It may, as we have 
seen, be a good contract for a future sale, but it is not a present 
sale. Thus, in contracts for the sale of articles yet to be manu¬ 
factured, the subject of the contract not being in existence 
when the parties enter into their engagement, no property 
passes until the chattel is in a finished state, and has been 
specially appropriated to the person giving the order, and 
approved and accepted by him. 

As there can be no sale unless of a specific thing, so there 
is no sale but for a price which is certain, or which is capable 
of being made certain by a distinct reference to a certain 
standard. 

SECTION II. 

DELIVERY AND ITS INCIDENTS. 

When a sale is effected, the buyer has an immediate right 
to the possession of the goods, as soon as he pays or tenders 
the price; or at once, without payment, if the sale be on credit. 
And the seller is bound to deliver the goods. 

What is a sufficient delivery is sometimes a question of 


122 


SALES OF PERSONAL PROPERTY. 


difficulty. In general, it is sufficient, if the goods are placed in 
the buyer’s hands or his actual possession, or if that is done 
which is the equivalent of this transfer of possession. Some 
modes and instances of delivery we have already seen. We 
add, that if the goods are landed on a wharf alongside of the 
ship which brings them, with notice to the buyer, or knowledge 
on his part, this may be a sufficient delivery, if usage, or the 
obvious nature of the case, make it equivalent to actually 
giving possession. And usage is of the utmost importance in 
determining questions of this kind. 

In general, the rule may be said to be, that that is a sufficient 
delivery which puts the goods within the actual reach or power 
of the buyer, with immediate notice to him, so that there is 
nothing to prevent him from taking actual possession. 

When, from the nature or situation of the goods, an actual 
delivery is difficult or impossible, as in case of a quantity of 
timber floating in a boom, slight acts, as touching the timber, 
or even going near it and pointing it out, are sufficient to con¬ 
stitute a delivery, if they sufficiently indicate the transfer of 
possession. So if the property which is the subject of the 
sale is at sea, the indorsement and delivery of the bill of lading, 
or other instrument of title, is sufficient to constitute a delivery, 
and by such indorsement and delivery of the bill of lading the 
property in the goods immediately vests in the buyer; and he 
can transfer this to one who buys of him, by his own indorse¬ 
ment and delivery of the bill of lading. Where goods at sea 
are sold, the seller should send or deliver the bill of lading to 
the buyer within a reasonable time, that he may have the means 
of offering the goods in the market. And it has been held that 
a refusal of the bill of lading authorized the buyer to rescind 
the sale. 

Until delivery, the seller is bound to keep the goods with 
ordinary care, and is liable for any loss or injury arising from 
the want of such care or of good faith. But if he exercises 
ordinary care and diligence in keeping the commodity, he is not 
liable for any loss or depreciation of it, unless this arises from 
some defect which he has warranted not to exist. Thus, in a 
case in New York, A sold to B a certain quantity of beef, B 


DELIVERY AND ITS INCIDENTS. 


123 


paying the purchase-money in full; and it was agreed between 
them that the beef should remain in the custody of A until it 
should be sent to another place. Some time after, B received 
a part, which proved to be bad, and the whole was found, on 
inspection, to be unmerchantable. The court held that, as the 
beef was good at the time of its sale, the vendee (or buyer) 
must bear the loss of its subsequent deterioration. 

If the buyer lives at a distance from the seller, the seller 
must send the goods in the manner indicated by the buyer. 
If no directions are given, he must send them in such a way as 
usage, or in the absence of usage, as reasonable care would 
require. And generally all customary and proper precautions 
should be taken to prevent loss or injury in the transit. If 
these are taken, the goods are sent at the risk of the buyer, and 
the seller is not responsible for any loss. But he is responsible 
for any loss or injury happening through the want of such 
care or precaution. And if he sends them by his own 
servant, or carries them himself, they are in his custody, and, 
generally, at his risk, until delivery. But if the buyer distinctly 
indicates the way or means by which he wishes that the goods 
should be sent to him, as by such a carrier, or such a line, if 
the seller complies with his directions, and exercises ordinary 
care over the goods until they are delivered to the person or 
line so pointed out, his responsibility ends with this delivery, in 
the same manner as it would if he delivered the goods into the 
hands of the owner. 

This question of delivery has a very great importance in 
another point of view; and that is, as it bears upon the honesty, 
and therefore the validity, of the transaction. As the owner of 
goods ought to have them in his possession, and as a transfer of 
possession usually does, and always should, accompany a sale, 
the want of this transfer is an indication, more or less strong, 
that the sale is not a real one, but a mere cover. The prevail¬ 
ing rule may be stated thus : Delivery is not essential to a sale 
at common law; but if there is no delivery, and a third party, 
without knowledge of the previous sale, purchases the same 
thing from the seller, he gains an equally valid title with the 
first buyer; and if he completes this title by acquiring posses 


24 


SALES OF PERSONAL PROPERTY. 


sion of the thing before the other, he can hold it against the 
other. So, also, unless delivery or possession accompany the 
transfer of the right of property, the things sold are subject to 
attachment by the creditors of the seller. And if the sale be 
completed, and nevertheless no change of possession takes 
place, and there is no certain and adequate cause or justification 
of the want or delay of this change of possession, the transac¬ 
tion will be regarded as fraudulent and void in favor of a third 
party, who, either by purchase or by attachment, acquires the 
property in good faith, and without a knowledge of the former 
sale. This fact, that the thing sold remained in the possession 
of the seller, might be explained, and if shown to be perfectly 
consistent with honesty, and to have occurred for good reasons, 
and especially if the delay in taking possession was brief, the 
title of the first buyer would be respected. 

If goods are sold in a shop or store, separated, and weighed 
or numbered if that be necessary, and put into a parcel, or 
otherwise made ready for delivery to the buyer, in his presence, 
and he request the seller to keep the goods for a time for him, 
this is so far a delivery as to vest the property in the goods in 
the buyer, and the seller becomes the bailee of the buyer. 
And if the goods are lost while thus in the keeping of the 
seller, without his fault, it is the loss of the buyer. (In law the 
word bail means “to deliver.” Thus a “bailor” is one who 
delivers a thing to another; the “bailee” is the party to whom 
it is delivered; and “bailment” is the delivery. The “bail” of 
a party who is arrested, is he or they to whom the arrested 
person is delivered or given up, on their agreement that he shall 
be forthcoming when required by law.) 

In a contract of sale there is sometimes a clause providing 
that a mistake in description, or a deficiency in quality or 
quantity, shall not avoid the sale, but only give the buyer a 
right to deduction or compensation. But if the mistake or 
defect be great and substantial, and affects materially the 
availability of the thing for the purpose for which it was 
bought, the sale is nevertheless void, for the thing sold is not 
that which was to have been sold. 

If the buyer knowingly receives goods so deficient or so 


DELIVERY AND ITS INCIDENTS. 


125 

different from what they should have been that he might have 
refused them, he will be held to have waived the objection, and 
to be liable for the whole price; unless he can show a good rea¬ 
son for not returning them, as in the case of materials innocently 
used before discovery of the defects, or the like. Thus, where 
a man bought a chandelier warranted sufficient to light a certain 
room, and kept it six months, the court did not permit him to 
return it and refuse payment, although it was not what it had 
been warranted to be. Sometimes two or three months, or 
even less, is held too long a keeping to permit a subsequent 
return. But though the buyer cannot return the thing, yet, 
when the price is demanded, he may set off whatever damages 
he has sustained by the seller’s breach of contract, and the 
seller can recover only the value to the buyer of the goods sold, 
even if that be nothing. But a long delay or silence may imply 
a waiver of even this right on the part of the buyer. 

One who orders many things at one time, and by one bargain, 
may, generally, refuse to receive a part without the rest; but if 
he accepts any part, he severs that part from the rest, and rebuts 
(or removes) the presumption that it was an entire contract; the 
buyer will then be held as having given a separate order for 
each thing, or part, and as therefore bound to receive such parts 
as are tendered, unless some distinct reason for refusal attaches 
to them. If many several things are bought at one auction, 
but by different bids, and especially if the name of the buyer be 
marked against each, there is a separate sale to him of each one, 
and it is independent of the others; so that he must take and 
pay for any one or more, although the others are not what they 
should be, or cannot be had. If, however, it could be shown by 
the nature of the case, or by evidence, that the things were so 
connected that one was bought entirely for the sake of the other, 
he would not be obliged to take the one unless he could have 
the other. This rule applies also when the things sold are lots 
of land. Indeed, the general rule may be stated thus. The 
question whether it is one contract, so that the buyer shall not 
be bound to receive any part unless the whole be tendered to 
him, will be determined by ascertaining from all the facts 
whether the parts so belong together that it may reasonably be 


126 


SALES OF PERSONAL PROPERTY. 


supposed that none would have been purchased if the whole had 
not been purchased, or if any part could not have been pur¬ 
chased. 

The buyer may have, by the terms of the bargain, the right 
of redelivery. For sales are sometimes made upon the agree¬ 
ment that the purchaser may return the goods within a fixed, or 
within a reasonable time. He may have this right without any 
condition, and then has only to exercise it at his discretion. 
But he may have the right to return the thing bought, only if it 
turns out to have, or not to have, certain qualities ; or only upon 
the happening of a certain event. In such case the burden of 
proof is on him to show that the circumstances exist which are 
necessary to give him this right. In either case the property 
vests in the buyer at once, as in ordinary sales; but subject to 
the right of return given him by the agreement. If he does not 
exercise his right within the agreed time, or within a reasonable 
time if none be agreed upon, the right is wholly lost, the sale 
becomes absolute, and the price of the goods may be recovered 
in an action for goods sold and delivered. And if during the 
time the buyer so misuse the property as to materially impair 
its value, he cannot tender it back, but is liable for the price. 

SECTION III. 

CONTRACTS VOID FOR ILLEGALITY OR FRAUD. 

As the law will not compel or require any one to do that 
which it forbids him to do, no contract can be enforced at law 
which is tainted with illegality. It may, however, be necessary 
to consider whether the contract be entire or separable into 
parts, and whether it is wholly or partially illegal. If the whole 
consideration, or any part of the consideration, be illegal, the 
promise founded upon it is void, whether the promise is legal or 
not. But if the consideration is legal, and the promise is in 
part legal and in part illegal, it is valid for the legal part and 
may be enforced for that part. Thus, if a master of a vessel 
agreed to smuggle goods, and in consideration of his doing so 
the owner promised to pay him one-fourth of his profits, and also 
to advance twenty dollars a month to his family during a certain 


CONTRACTS VOID FOR ILLEGALITY OR FRAUD. 127 

time, the master could enforce no part of this promise, and 
recover no damages for any breach of it, because the considera¬ 
tion is illegal. But if, for one thousand dollars paid, the receiver 
agreed to sell and deliver a quantity of merchandise, and also to 
assist the buyer in some contemplated fraud, he would be bound 
to sell and deliver the goods, because the consideration was legal, 
and this part of the promise was legal, but not to assist in the 
fraud, because this part of the promise is illegal. I mean to 
say, that if a whole promise, or any part of a promise that cannot 
be severed into substantial and independent parts, is illegal, the 
whole promise is void. But if the consideration is legal, and 
the promise is legal in part and illegal in part, and that part of 
the promise which is legal can be severed from that part which 
is illegal, and then be a substantial promise having a value of its 
own, this legal part can be enforced. For further remarks upon 
this subject, however, I refer to the previous chapter on Con¬ 
sideration. 

Formerly, an agreement to sell at a future day goods which 
the promisor had not at the time, and had not contracted to buy, 
and had no notice or expectation of receiving by consignment, 
was considered open to the objection that it was merely a wager, 
and therefore void. But later cases have admitted it to be a 
valid contract. 

We have already said, in a preceding chapter, that fraud 
vitiates and avoids every contract and every transaction. 
Hence, a wilfully false representation by which a sale is effected; 
or a purchase of goods with the design of not paying for them ; 
or hindering others from bidding at auction by wrongful means; 
or selling at auction, and providing by-bidders to run the thing 
up fraudulently; or selling ‘‘with all faults,” and then purposely 
concealing and disguising them, as when a man advertised a ship 
for sale at auction “with all faults,” but purposely put her in a 
situation where an important fault could not be easily detected; 
or any similar act, will avoid a sale. No title or right passes by 
such sale to the fraudulent party; but the innocent party, 
whether buyer or seller, may waive the fraud, and insist that the 
fraudulent party shall not take advantage of his own fraud to 
avoid the sale. 


128 


SALES OF PERSONAL PROPERTY. 


A buyer who is imposed upon by a fraud, and therefore has 
a right to annul the sale, must exercise this right as soon as 
may be after discovering the fraud. He does not lose the right 
necessarily by every delay, but certainly does by any consid¬ 
erable and unexcused delay. 

A seller may rescind and annul a sale if he were induced to 
make it by fraud. But he may waive the right and sue for the 
price. If, however, the fraudulent buyer gets the goods on a 
credit, and the seller sues for the price before the credit expires, 
this suit is a confirmation of the whole sale, including the credit; 
or rather it is an entire waiver of his right to annul the sale, 
and the suit cannot be maintained until the credit has wholly 
expired. 

If a party who has been defrauded by any contract brings an 
action to enforce it, this is a waiver of his right to rescind, and 
a confirmation of the contract. Or if, with knowledge of the 
fraud, he offers to perform the contract on conditions which he 
had no right to exact, this has been held so effectual a waiver of 
the fraud that he cannot set it up in defense, if sued on the 
contract. 

SECTION IV. 

SALES WITH WARRANTY. 

A sale may be with warranty; and this may be general, or 
particular and limited. A general warranty does not extend to 
defects which are known to the purchaser; or which are open to 
inspection and observation, unless the purchaser is at the time 
unable to discover them readily, and relies rather upon the 
knowledge and warranty of the seller. A warranty may also 
be either express or implied. It is 7iot implied by the law gen¬ 
erally merely from a full, or, as it is called, a sound price. The 
rule of law, caveat emptor (let the buyer take care), prevents this. 
But this rule never applies to cases of fraud. As a general rule, 
however, mere silence on the part of the seller is not fraud; 
but the usage of the trade will be considered, and if that require 
a declaration of certain defects whenever they exist, the absence 
of such a declaration is a warranty against such defects. Mere 
declarations of opinion are not a warranty. Thus, in England, 


SALES WITH WARRANTY. 


129 


an action was brought on a warranty that certain goods were fit 
for the China market. The plaintiff produced a letter from the 
defendant, saying that he had goods fit for the China market, 
which he offered to sell cheap. But the court held that such a 
letter was not a warranty, but merely an invitation to trade, it 
not having any specific reference to the goods actually bought 
by the plaintiff. 

If these declarations are intended to deceive, and have that 
effect, they may avoid the sale for fraud. And affirmations of 
quantity or quality, which are made pending the negotiations 
for sale, with a view to procure a sale, and have that effect, will 
be regarded as a warranty; thus, in New York, it was held that 
a representation made by a vendor, upon a sale of flour in bar¬ 
rels, that it was in quality superfine or extra-superfine, and worth 
a shilling a barrel more than common, coupled with the assur¬ 
ance to the buyer’s agent that he might rely upon such repre¬ 
sentation, was a warranty of the quality of the flour. So in 
England, where upon the sale of a horse the vendor said to the 
vendee, “You may depend upon it, the horse is perfectly quiet 
and free from vice;” this was held to amount to an express 
warranty that he was quiet and free from vice. 

Goods sold by sample are warranted by such sale to conform 
to the sample ; but there is no warranty that the sample is what 
it appears to be. Thus, in England, there was a sale of five 
bags of hops, with express warranty that the bulk answered the 
samples by which they were sold. The sale was in January ; at 
that time the samples fairly answered to the commodity sold, 
and no defect was at that time perceptible to the buyer. In 
July following, every bag was found to have become unmer¬ 
chantable and spoiled, by heating, caused probably by the hops 
having been fraudulently watered by the grower, or some other 
person, before they were purchased by the defendant. The 
seller knew nothing of this fact at the time of sale, and the 
samples were as much damped as the rest; and it was then 
impossible to detect it. It was held by the court that there was 
here no implied warranty that the bulk of the commodity was 
merchantable at the time of sale, although a merchantable price 
was given. 


9 


130 


SALES OF PERSONAL PROPERTY. 


A breach of warranty does not always authorize the buyer 
to return the article sold, unless there be an agreement to that 
effect, or fraud; but only to sue on the warranty, and recover 
damages for the breach of it. But if one orders a thing for a 
special purpose known to the seller, he may certainly return it if 
it be unfit for that purpose, if he does so as soon as he ascertains 
its unfitness. 

The seller of goods actually in his possession as owner is 
held to warrant his own title by the fact of the sale. But if the 
property be not in the possession of the vendor, and there be 
no assertion or ownership by him, no implied warranty of title 
arises. 

If a thing is ordered for a special purpose, and is supplied, 
there is an implied warranty that it is fit for that purpose. In 
one case, the defendant was a dealer in ropes, and represented 
himself to be a manufacturer of the article. The buyer, a wine- 
merchant, applied to him fora crane-rope. The seller’s foreman 
went to the buyer’s premises, in order to ascertain the dimen¬ 
sions and kind of rope required. He examined the crane and 
the old rope, and took the necessary admeasurements, and was 
told that the new rope was wanted for the purpose of raising 
pipes of wine out of the cellar, and letting them down into the 
street; when he informed the buyer that a rope must be 
made on purpose. The seller did not make the rope himself, 
but sent the order to his manufacturer, who employed a third 
person to make it. It was held that, as between the parties to 
the sale, there was an implied warranty that the rope was a fit 
and proper one for the purpose for which it was ordered. And 
the seller was held responsible, not only for the rope, which 
broke, but for a pipe of wine which was thereby lost. 

This principle must not be applied to those cases where an 
ascertained article is purchased, although it be intended for a 
special purpose. For if the thing itself is specifically selected 
and purchased, the purchaser takes upon himself the risk of its 
effecting its purpose. This is illustrated in an English case 
thus : “ If a man says to another, 4 Sell me a horse fit to carry 
me,’ and the other sells a horse which he knows to be unfit to 
ride, he will be liable for the consequences ; but if a man says, 


FORMS OF BILLS OF SALE. 


131 

‘ Sell me that gray horse to ride,’ and the other sells it, knowing 
that the buyer will not be able to ride it, that would not make 
him liable.” If he said, “ Sell me that gray horse if he is fit to 
ride,” and the seller sold it knowing he was not fit, he would be 
liable. 

It has been much discussed whether a bill of sale, describing 
the article sold, amounts to a warranty that the article conforms 
to the description. It seems now to be well settled that it does. 
In a recent Massachusetts case, there was a bill of sale as follows : 
“ H. & Co. bought of T. W. & Co. two cases of indigo , $272.” 
The article sold was not indigo, but principally Prussian blue. 
No fraud was imputud to the seller, and the article was so pre¬ 
pared as to deceive experienced and skilful dealers in indigo. 
The naked question was presented, whether the bill of sale con¬ 
stituted a warranty that the article sold was indigo. And the 
court held that it did. Here the warranty implied by the bill of 
sale was as to the kind of goods. In another case the bill was, 
“ Sold E. T. H. 2,000 gallons prime quality winter oil .” The 
thing sold was oil, and winter oil; but not prime quality. And 
the Court held that the bill of sale amounted to a warranty 
that it was of that quality. In an English case, a vessel was 
advertised for sale as “copper fastened;” and that was held 
to be a warranty that she was so fastened according to the 
usual understanding of merchants. 

One who sells provisions is always considered in law as war¬ 
ranting that they are good and wholesome. 

( 37 .) 

Bill of Sale of Personal Property. 

Know all Men by these Presents, That I (name of the 

seller) in the county of for and in consideration of the sum 

of to in hand well and truly paid, at or before 

signing, sealing, and delivery of these presents, by {name of the buyer) 

the receipt whereof I the said do hereby acknowledge, 

have granted, bargained, and sold, and by these presents do grant, bargain, 
and sell unto the said 

To Have and to Hold the said granted and bargained 
unto the said heirs, executors, administrators, and assigns, 

to only proper use, benefit, and behoof forever, and 

the said does vouch himself to be the true and lawful owner of the 


132 


SALES OF PERSONAL PROPERTY. 


goods and effects hereby sold, and to have in himself full power, good right, 
and lawful authority to dispose of the said in manner as aforesaid, 

and I do, for myself, my heirs, executors, and administrators, hereby covenant 
and agree to warrant and defend the said 

(thegoods sold) unto the said heirs, executors, 

and administrators, and assigns, against the lawful claims and demands oi 
all persons whomsoever: 

In Witness Whereof, the said have hereunto 

set hand and seal this day of 

in the year of our Lord one thousand eight hundred and 

Executed and Delivered in Presence of 


( 38 .) 

Bill of Sale of Personal Property, with a Condition to make 
it a Mortgage, with Power of Sale. 

Know all Men by these Presents, That 
in consideration of paid by the 

receipt whereof is hereby acknowledged, do hereby grant, sell, transfer, and 
deliver unto the said the following goods and chattels, 

namely: 

To Have and to Hold all and singular the said goods and chattels to th# 
said and executors, administrators, and assigns 

to their own use and behoof forever. 

And hereby covenant with the grantee that 

the lawful owner of the said goods and chattels ; that they are free from all 
incumbrances, that have good right 

to sell the same as aforesaid ; and that will warrant and defend the 

same against the lawful claims and demands of all persons. 

Provided Nevertheless, that if the grantor , or executors, 

administrators, or assigns shall pay unto the grantee or, 

executors, administrators, or assigns, the sum of in 

from this date, with interest semi-annually at the rate of per cent, per 

annum, and until such payment shall not waste or destroy the same, nor suf¬ 
fer them or any part thereof to be attached on mesne process ; and shall not, 
except with the consent in writing of the grantee or representa¬ 
tives, attempt to sell or to remove from the same or any part 

thereof,—then this deed, as also note of even date herewith, signed 

by the said whereby promise to pay 

to the grantee or order the said sum and interest at the times aforesaid, 
shall be void. 


But upon any Default in the performance of the foregoing condition, 
the grantee , or executors, administrators, or assigns, may sell 

the said goods and chattels by public auction, first giving day’s notice 

in writing of the time and place of sale to the grantor or representa- 


THE SALE OF ONE'S BUSINESS. 


133 


tives. And out of the money arising from such sale the grantee , or 
representatives shall be entitled to retain all sums then secured by this mort¬ 
gage, whether then or thereafter payable, including all costs, charges, and 
expenses incurred or sustained by them in relation to the said 

property, or to discharge any claims or liens of third persons affecting the 
same, rendering the surplus, if any, to the grantor or executors, 

administrators, or assigns. 

And it is Agreed, that the grantee , or executors, administrators, 
or assigns, or any person or persons in their behalf, may purchase at any sale 
made as aforesaid ; and that, until default in the performance of the condition 
of this deed, the grantor and executors, administrators, and assigns, 

may retain possession of the above-mortgaged property, and may use and 
enjoy the same. 

In Witness Whereof, the said hereunto set 

hand and seal , this day of 

in the year one thousand eight hundred and 

Signed\ Sealed,\ and Delivered in Presence of 

SECTION V. 

THE SALE OF ONE’S BUSINESS. 

Such sales are not unfrequent in this country ; and the 
seller always agrees and promises that he will not pursue that 
trade, business, or occupation again. There are numerous 
cases, both in English law-books and in our own, which have 
arisen from bargains of this kind. The law seems now to be 
settled, that such a contract is wholly void and inoperative, pro¬ 
vided the seller agrees to give up his business and never resume 
it again, at any time or anywhere ; that is, without any limita¬ 
tion of space or time ; because it is against the public interest 
that a man should be permitted to cast himself out from his 
business or trade for the rest of his life. But the contract is 
good, if for a fair consideration the seller agrees not to resume 
or carry on that business within a certain time, or within certain 
limits. What these limits must be is not certain. The courts 
say they must be “ reasonable,” and made in good faith. A 
contract not to carry on a business in a certain town would 
undoubtedly be good. So, we should say, would be a bargain 
not to do so within a certain State. In one case in Massachu¬ 
setts, a contract not to use certain machines in any of the 


134 


STOPPAGE IN TRANSITU. 


United States except two (which were Massachusetts and 
Rhode Island) was held valid, all of the States but two being 
considered as a sufficiently defined or limited place ; but this 
was unusual. The courts generally would sanction such a 
bargain, if it were limited to only a part of the United States ; 
as to all New England, for example. 

In such a contract, it would be better for the parties to agree 
upon the amount which the seller should pay by way of 
damages, if he violated his bargain, because it might be very 
difficult to prove specific damages; and such a bargain, if it 
were reasonable, would be enforced by law. 

Such damages, agreed on beforehand, are called liquidated 
damages. In all cases where damages are demanded, and are 
not agreed on, they are called unliquidated damages, and it is 
the duty of the jury to determine, from the evidence before 
them, what damages the injured party has suffered, and what 
amount would indemnify him. 


CHAPTER XI. 

STOPPAGE IN TRANSITU. 

Here is an instance where a Latin phrase has become 
English, by general adoption and use. hi transitu means “ in 
the transit,” and the English phrase may just as well be used; 
but the Latin one is used much oftener. What the whole 
phrase Stoppage in transitu means, is this. A seller, who has 
sent goods to a buyer at a distance, and after sending them 
learns that the buyer is insolvent, may stop the goods at any 
time before they reach the buyer. His right to do this is called 
the right of Stoppage in transitu. 

If the goods are sent to pay a precedent and existing debt, 
they are not subject to this right. 

The right exists only upon actual insolvency; but this need 
not be formal insolvency, or bankruptcy at law; an actual 
inability to pay one’s debts in the usual way being enough. If 
the seller, in good faith, stops the goods, in a belief of the 



STOPPAGE IN TRANSITU. 


135 


buyer’s insolvency, the buyer may at once defeat this stoppage, 
and reclaim the goods, by payment of the price. So he may, 
by a tender of adequate security, if the sale be on credit. 

The stoppage must be effected by the seller, and evidenced 
by some act; but it is not necessary that he should take actual 
possession of the goods. If he gives a distinct notice to the 
party in possession, whether carrier, warehouseman, middleman, 
or whoever else, before the goods reach the buyer, this is 
enough. But a notice of stoppage in transitu , to be effectual, 
must be given either to the person who has the immediate 
custody of the goods; or if to the principal whose servant has 
the custody, then at such a time, and under such circumstances, 
as that he may, by the exercise of reasonable diligence, com¬ 
municate it to his servant in time to prevent the delivery to the 
consignee. 

Goods can be stopped only while in transitu ; and they are 
in transitu only until they come into the possession of the 
buyer. But this possession need not be actual, a constructive 
possession by the buyer being sufficient to prevent this stop¬ 
page ; as if the goods are placed on the wharf of the buyer, or 
on a neighboring wharf with notice to him, or in a warehouse 
with delivery of the key to him, or of an order on the ware¬ 
houseman. 

But the entry of the goods at the custom-house, without 
payment of duties, does not terminate the transit. If the 
buyer has demanded and marked them at the place where they 
had arrived on the termination of the voyage or journey, per¬ 
sonally or by his agent; or if the carrier still holds the goods, 
but only as the agent of the buyer; in all these cases the 
transit is ended. But if the carrier holds them by a lien for 
his charges against the buyer, the seller may pay these charges 
and discharge the lien, and then stop the goods in transitu. 

If the buyer has, in good faith and for value, sold the goods, 
“to arrive,” before he has received them, and indorsed and 
delivered the bill of lading, this second purchaser holds the 
goods free from the first seller’s right to stop them. But if the 
goods and bill are transferred only as security for a debt due 
from the first purchaser to the transferee, the original seller 


GUARANTY. 


136 

may stop the goods, and hold them subject to this security, and 
need pay only the specific advances made on their credit, or on 
that very bill of lading, and not a general indebtedness of the 
first purchaser to the second. 

A seller who stops the goods in transitu does not rescind 
the sale, but holds the goods as the property of the buyer; and 
they may be redeemed by the buyer or his representatives, by 
paying the price for which they are a security; and if not 
redeemed, they become the seller’s, only in the same way as a 
pledge might become his ; that is, he may sell them at a proper 
time, and in a proper manner, and with due notice, so that the 
buyer may protect his interests. And if the seller then fails to 
obtain from them the full price due, he has a claim for the 
balance upon the buyer. If he gets more than the amount due 
to him, he must pay over the balance to the buyer or his 
assignees. 

An honest buyer, apprehending bankruptcy, might wish to 
return the goods to their original owner; and this he could 
undoubtedly do, if they have not become distinctly his prop¬ 
erty, and the seller his creditor for the price. But if they have, 
the buyer has no more right to benefit this creditor by such an 
appropriation of these goods, than any other creditor by giving 
him any other goods. 


CHAPTER XII. 

GUARANTY. 

A guarantor is one who is bound to another for the fulfil¬ 
ment of a promise, or of an engagement, made by a third party. 
This kind of contract is very common. Generally it is not 
negotiable; that is, not transferable so as to be enforced by the 
transferee as if it had been given to him by the guarantor. No 
special form or words are necessary to the contract of guaranty ; 
and if the word “ guarantee ” be used, and the whole instru¬ 
ment contains all the characteristics of a note of hand, payable 
to order or bearer, then it is negotiable. Thus, in a case in 



GUARANTY. 


*37 


New York, the instrument was as follows: “For and in con¬ 
sideration of thirty-one dollars and fifty cents received of B. F. 
Spencer, I hereby guarantee the payment and collection of the 
within note to him or bearer. Auburn, Sept. 25, 1837. (Signed) 
Thomas Burns.” And it was held negotiable. What negotiable 
means will be more fully explained in the chapter on Notes of 
Hand and Bills of Exchange. 

The guaranty may be enforced, although the original debt 
cannot; as, for example, the guaranty of the promise of a wife 
or an infant; and sometimes the guaranty of a debt is requested, 
and given, for the very reason that the debt is not enforceable 
at law. But, generally, the liability of the principal measures 
and limits the liability of the guarantor. And if the creditor 
agree that the principal debt shall be reduced or lessened in a 
certain proportion, the obligation of the guarantor is reduced 
by law in an equal proportion. 

A contract of guaranty is construed somewhat strictly. 
Thus, a guaranty of the notes of one, does not extend to notes 
which he gives jointly with another. 

A guarantor who pays the debt of the principal may demand 
from his creditor the securities he holds, although not an 
assignment of the debt itself, or of the note or bond which 
declares the debt, for that is paid and discharged. And some¬ 
times the creditor will not be permitted to resort to the guar¬ 
antor until he has collected as much as he can from these 
securities. 

Unless the guaranty is by a sealed instrument, there must 
be a consideration to support it. If the original debt or obliga¬ 
tion rest upon a good consideration, this will support the 
promise of guaranty, if this promise was made at the same time 
with or prior to the original debt. But if that debt or obliga¬ 
tion be first incurred and completed before the guaranty is 
given, there must be a new consideration for the promise to 
guarantee that debt or the guaranty is void. But the consid¬ 
eration need not pass from him who receives the guaranty to 
him who gives it. Any benefit to him for whom the guaranty 
is given, or any injury to him who receives it, is a sufficient 
consideration if the guaranty be given because of it. 


133 


GUARANTY. 


A guaranty is not binding unless it is accepted, and unless 
the guarantor has knowledge of this. But the law presumes 
this acceptance in general, when the giving of the guaranty and 
any action on the faith of it, by the party to whom it is given, 
are simultaneous. In New York, wherever the guaranty is 
absolute, notice of its acceptance is unnecessary, unless expressly 
or impliedly required by the offer of guaranty. But, generally, 
an offer to guarantee a future operation, especially if by letter, 
doe's not bind the offerer unless he has such notice of the 
acceptance of his offer as would give him a reasonable opportu¬ 
nity of making himself safe. 

If the liability of the principal be materially varied by the 
act of the party guaranteed, without the consent of the guar¬ 
antor, the guarantor is discharged. Many interesting cases 
have arisen which involve this question. Thus, where a bond 
was given conditioned for the faithful performance of the duties 
of the office of deputy collector of direct taxes for eight certain 
townships, and the instrument of appointment, referred to in 
the bond, was afterwards altered so as to extend to another 
township without the consent of the surety, the Supreme Court 
of the United States held that the surety was discharged from 
his responsibility for moneys collected by his principal after the 
alteration. Again, in an English case, the facts were, that, in 
a bond by sureties for the careful attention to business and the 
faithful discharge of the duties of an agent of a bank, it was 
provided “that he should have no other business of any kind, 
nor be connected in any shape with any trade, manufacture, or 
mercantile copartnery, nor be agent for any individual or copart¬ 
nery in any manner or way whatsoever, nor be security for any 
individual or copartnery in any manner or way whatsoever.” 
The bank subsequently, without the knowledge of the sureties, 
increased the salary of the agent, he undertaking to bear one- 
fourth part of all losses which might be incurred by his dis¬ 
counts. It was held that this was such an alteration of the 
contract, and of the liability of the agent, that the sureties were 
discharged, notwithstanding that the loss arose, not from dis¬ 
counts, but from improper conduct of the agent. 

The guarantor is also discharged if the liability or obligation 


GUARANTY. 


J 39 

be renewed or extended by law. As if a bank, incorporated 
for twenty years, be renewed for ten more, and the officers and 
business of the bank go on without change; the original sure¬ 
ties of the cashier are not held beyond the first term. So a 
guaranty to a partnership is extinguished by a change among 
the members, although neither the name nor the business of the 
firm be changed. But a guaranty, by express terms, may be 
made to continue over most changes of this kind. 

A specific guaranty, for one transaction which is not yet 
exhausted, is not revocable. If it be a continuing or a general 
guaranty, it is revocable, unless an express agreement, founded 
on a consideration, makes it otherwise. 

A creditor may give his debtor some accommodation or 
indulgence without thereby discharging his guarantor. It would 
seem just, however, that he should not be permitted to give him 
any indulgence which would materially prejudice the guarantor. 
Generally, a guarantor may always pay a debt, and so acquire 
at once the right of proceeding against the party whose debt he 
has paid. On this ground, it has been held, that where a surety 
requested the creditor to proceed against the principal debtor, 
and the creditor refused to do this, and afterwards the debtor 
became insolvent and the surety was without indemnity, still 
the surety (or guarantor) was not discharged, because he might 
have paid the debt, and then sued the party whose debt he 
paid. In New York, it seems to be the law, that, if the surety 
requests the creditor to proceed against the principal debtor 
and he refuses, and the principal debtor afterwards becomes 
insolvent, the surety will be discharged. If, by gross negli¬ 
gence, the creditor has lost his debt, and has deprived the surety 
of security or indemnity, the surety must be discharged unless 
he was equally negligent. If a creditor gives time to his debtor 
by a binding agreement which will prevent a suit in the mean¬ 
time, this undoubtedly discharges the guarantor (unless the 
surety consents to the delay) because it deprives him of his 
power of acquiring a right of proceeding against the debtor, 
by paying the debt; for the debtor cannot during that time be 
sued. 

If there be a failure on the part of the principal, and the 


140 


GUARANTY. 


guarantor is looked to, he should have reasonable notice of this. 
And, generally, any notice would be reasonable which would 
be sufficient in fact to prevent his suffering from the delay. 
And if there be no notice, and the guarantor has been unharmed 
thereby, he is not discharged. 

If a guaranty purport to be official, that is, if it be made by 
one who claims to hold a certain office, and to give the promise 
of guaranty only as such officer, and not personally, the general 
rule is, that he is not liable personally, provided he actually held 
that office and had a right to give the guaranty officially. But 
he would still be held personally, if the promise made, or the 
relations of the parties indicated that credit was given person¬ 
ally to the parties promising, and not merely to them in their 
official capacity; or if he had no right to give the promise in 
his official capacity. 

A guaranty was given for the price of a cargo of iron, and 
the buyer bargained with the seller to pay him more than the 
fair price, the excess to go towards an old debt. The guaranty 
was held to be altogether void, because fraudulent; and could 
not be enforced even for the fair price. 

FORMS OF GUARANTY. 

( 39 .) 

Guaranty to be Indorsed on a Note. 

For value received I guarantee the payment of the within-written note. 

(Date.) (Signature.) 

( 40 .) 

Guaranty of a Note on Separate Paper. 

For value received I guarantee the due payment of a promissory note 
dated whereby promises to pay to , 

dollars, in months. 

(Date.) (Signature) 

( 41 .) 

Guaranty in Another Way, 

For value received I guarantee that the within (note or bill , or that such 
a note or billy describing it) will be collected and paid if demanded in due 
course of law. 

(Date) (Signature) 


FORMS OF GUARANTY. 


141 


( 42 .) 

Letter of Guaranty. 

Sir, —If you will sell to Mr. of the goods he wishes to 

buy {or the goods 7nay be described) to the amount of {this may be 

omitted if the guaranty is intended to be of any amount ), within year 

(or days or months , or the time may be omitted if it is not intended to limit 
z/)from the date hereof, I, for value received, hereby promise and guarantee 
that the price thereof shall be duly paid. (This letter should also state on what 
terms the goods should be sold\ as to credit , delivery, etc., unless it is intended 
to leave all this to the buyer and seller. 

(Date.) (Signature) 


When goods or stocks or other securities are given as col¬ 
lateral security for borrowed money or any other debt, an 
instrument is sometimes given, the intention of which is to 
guarantee that the collaterals should be and remain sufficient to 
secure the indebtedness. It may be in one of the following 
forms, as the bargain requires. These are sometimes called 
“margin guaranties.” 


( 43 .) 


Guaranty with Collaterals authorizing Sale. 


Whereas, I (or we) have deposited with as collateral 

security for payment at maturity of the following (here describe the 

debt guaranteed) 

Now this Witnesseth, That in the event of the non-payment at 
maturity of any or all of these hereby authorize or 

assigns, to sell the above (the collaterals) at public or private 
sale, or at the brokers’ board, without notice to and apply proceeds 

to payment of said and all necessary expenses, holding 

responsible for any deficiency. 


In Witness Whereof, 
seal , this day of 

(Witness) 


have hereunto set hand and 

one thousand eight hundred and 
(Signature) 


( 44 .) 


Guaranty with Collaterals, promising Additional security 
or authorizing Sale. 

Having Borrowed this Day of (the sum borrowed) on 

the following collaterals (here describe the collaterals) 

I Hereby Agree, in case the market-price of the said stock should fall 
at any time during the continuance of the loan to an amount insufficient to 


142 


THE STA TUTE OF FRA UDS. 


cover the sum loaned, with per cent, margin added thereto, that in 

.such event I will, on demand, deposit additional security to be approved b> 
him, which shall be sufficient to keep the collaterals thus deposited equal to 
a sum per cent, above said loan, and so as often as said collaterals 

shall diminish ; and that, in default thereof, the said shall 

have power to sell at public or private sale, without notice, all, or any of the 
said securities (as well as any others he may hold), to pay the amount of the 
said loan, with all interest and charges thereon, and for so doing, I fully 
elease him of all claims, actions, and causes thereof. 


CHAPTER XIII. 

THE STATUTE OF FRAUDS. 


SECTION I. 

ITS PURPOSE AND GENERAL PROVISIONS. 

The Statute of Frauds, so called, was passed in the 29th 
year of Charles II. (1677) for the purpose of preventing frauds 
and perjuries, by requiring in many cases written evidence of a 
contract. In nearly all our States a similar statute has been 
enacted. But no two of the statutes of the different States 
agree exactly in all their provisions. They do, however, agree 
substantially; and we shall give in this chapter the prevailing 
and nearly universal rules for the construction and application 
of this statute. It is often of very great importance in com¬ 
mercial transactions. Those provisions which especially relate 
to business law are contained in the fourth and seventeenth 
sections. 

By the fourth section, it is enacted that “no action shall be 
brought whereby to charge any executor or administrator, upon 
any special promise, to answer damages out of his own estate; 
or whereby to charge the defendant, upon any special promise, 
to answer for the debt, default, or miscarriages of another per¬ 
son ; or to charge any person upon any agreement made upon 
consideration of marriage; or any contract for sale of lands, 
tenements, or hereditaments, or any interest in or concerning 
them; or upon any agreement that is not to be performed 




A PROMISE TO PA Y THE DEBT OF ANOTHER. ^3 

within the space of one year from the making thereof: unless 
the agreement, upon which such action shall be brought, or 
some memorandum or note thereof, shall be in writing, and 
signed by the party to be charged therewith, or some other per¬ 
son thereunto by him lawfully authorized.” 

By the seventeenth section, it is enacted that “ no contract 
for the sale of any goods, wares, and merchandises, for the 
price of £10 sterling, or upwards, shall be allowed to be good, 
except the buyer shall accept part of the goods so sold, and 
actually receive the same, or give something in earnest to bind 
the bargain, or in part of payment, or that some note or memo¬ 
randum in writing of the said bargain be made and signed by 
the parties to be charged by such contract, or their agents 
thereunto lawfully authorized.” 

The second and fifth clauses of the fourth section, and the 
whole of the seventeenth, relate to our present subject. The 
second clause prevents an oral guaranty from being enforced at 
law; but if money be paid on one, it cannot be recovered back. 

SECTION II. 

A PROMISE TO PAY THE DEBT OF ANOTHER. 

It is very often difficult to say whether the promise of one 
to pay for goods delivered to another is an original promise, as 
to pay for one’s own goods, and then it need not be in writing, 
or a promise to pay the debt or guaranty the promise of him to 
whom the goods are delivered, and then it must be in writing. 
If it be a promise to pay the debt of another, it is said to be a 
collateral promise, and not an original promise. The question 
may always be said to be : To whom did the seller give, and was 
authorized to give , credit? This question the jury will decide, 
upon consideration of all the facts, under the direction of the 
court. If a seller sues one to whom he did not deliver the 
goods, on the ground that this other promised to pay for them, 
then the question is, Did this other promise to pay for them as 
for his own goods ? for then the promise need not be in writing. 
Or did he promise to pay for them as for the goods of the party 
receiving them ? and then it is a promise to pay the debt of 


144 


THE STATUTE OF FRAUDS. 


another, and must be in writing. If, on examination of the books 
of the seller, it appears that he charged the goods to the party 
who received them, it will be difficult, if not impossible, for the 
seller to maintain that he sold them to the other party. But if 
he charged them to this other, such an entry would be good 
evidence, and, if confirmed by circumstances, strong evidence 
that this, party was the purchaser. But it cannot be conclusive; 
for the party not receiving the goods may always prove, if he 
can, that he was not the buyer, and that he promised only as 
surety for the party who was the buyer, and, consequently, that 
his promise cannot be enforced if not in writing. And, in general, 
in determining this question, the court will always look to the 
actual character of the transaction, and the intention of the 
parties. 

The courts, both in England and in America, have often 
endeavored to illustrate this question. Thus, in an early Eng¬ 
lish case, the court said: “ If two come to a shop, and one buys, 
and the other, to gain him credit, promises the seller, ‘If he 
does not pay you, I will/ this is a collateral undertaking, and 
void, without writing, by the Statute of Frauds. But if he 
says, ‘Let him have the goods, I will be your paymaster/ this 
is an undertaking as for himself, and he shall be intended to be 
the very buyer, and the other to act but as his servant,” So, 
in a case in Maryland, the court said: “ If B gives credit to C 
for goods sold and delivered to him, on the promise of A to 
‘see him paid/ or ‘to pay him for them if C should not/ in that 
case it is the immediate debt of C, for which an action will lie 
against him, and the promise of A is a collateral undertaking 
to pay that debt [and must be in writing], he being only liable 
as a surety. But where the party undertaken for is under no 
liability himself, the promise is an original undertaking of the 
party promising, and binding upon him without being in writing. 
Thus, if B furnishes goods to C, on the express promise of A 
to pay for them, and if A says to him, ‘ Let C have goods to such 
an amount, and I will pay you/ and the credit is given to A, in 
that case C being under no liability, there is nothing to which 
the promise of A can be collateral; but A being the immediate 
debtor, it is his original undertaking, and not a promise to 


AGREEMENT NOT TO BE PERFORMED IN A YEAR. 145 

answer for the debt of another; ” and therefore need not be in 
writing. 

Whenever the main purpose and object of the promisor is 
not to answer for another, but to subserve some purpose of his 
own, his promise is not within the statute, although it may be 
in form a promise to pay the debt of another, and although the 
performance of it may incidentally have the effect of extinguish¬ 
ing the liability of another. If an old debt is extinguished by 
a new promise, this promise is considered as an original one, and 
not within the requirement of the statute. 

If there be an oral promise to pay the debt of another, and 
also to do some other thing, this last can be enforced at law, if 
this other thing, and so much of the promise as relates to it, can 
be severed from the debt of the other and the promise relating 
to that debt; for although that promise must be in writing, the 
other may be oral. 

SECTION III. 

AN AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR. 

Under the fifth clause in the fourth section, it is held that 
an agreement which may be performed within the year is not 
affected by the statute, as the words, “ that is not to be performed 
within one year,” do not apply to an agreement which, when 
made, was, and by the parties was understood to be, fairly 
capable of complete execution within a year, without the inter¬ 
vention of extraordinary circumstances,—although in point of 
fact its execution was extended much beyond the year. So 
where one agreed orally, for one guinea, to give another a num¬ 
ber of guineas on the day of his marriage, it was held that 
this promise was not within the statute, that is, not one which 
the statute required to be in writing, because he might be 
married within a year, and the promisor was therefore bound 
by it. So where one agreed orally never to go into the staging 
business in a certain place, as this contract could last only while 
the promisor lived, and he might die within a year, he was held 
to be bound by it. 

10 


146 


THE STATUTE OF FRAUDS . 


SECTION IV. 

THE FORM AND SUBJECT MATTER OF THE AGREEMENT. 

The “agreement” must be in writing; but generally, in this 
country, the writing need not contain or express the considera¬ 
tion, which may be proved otherwise. Nor need it be all on 
one piece of paper. For it is sufficient if on several pieces, as 
in several letters, which, however, relate to one and the same 
business, and may fairly be read together as the statement of 
one transaction. Put it must appear from the papers that they 
are so connected. 

The “signature” may be in any part of the paper,—the 
beginning, middle, or end, except in those of our States in which 
the statute has the word “subscribed” instead of “signed;” 
in which case it should be in the usual place at the bottom. If 
the name and the agreement be pri?ited y it is sufficient; hence, 
a printed shop-bill, with the name of the seller, as usual, at 
the beginning, if delivered to the buyer, is generally sufficient 
to charge the seller in an action for refusing to deliver the 
goods. 

Shares in railroad companies, in manufacturing companies, 
and, generally, in all corporations and joint-stock companies, are 
“goods, wares, or merchandises,” within the meaning of the stat¬ 
ute, in this country, and an agreement for their purchase and sale 
must therefore be in writing. 

It may be further remarked, that the operation of the statute 
has been always limited to such contracts as have not been 
executed in any substantial part, and therefore remain wholly 
executory. For if they had been executed substantially in good 
part, they are binding, although only oral. 

In Massachusetts, the Statute of Frauds also provides (3d 
section) that no action shall be brought to charge any person 
upon, or by reason of, any representation or assurance made 
concerning the character, conduct, credit, ability, trade, or deal¬ 
ings of any other person, unless it be made in writing, and 
signed by the party to be charged. And there are provisions 
substantially similar to this in the statutes of Maine and Ver¬ 
mont. 


HOW PA YMENT MA Y BE MADE . I4 y 

Instead of the “j£ io” in the seventeenth section of the 
English Statute, the sum mentioned in the Statutes of Frauds 
of the different States, is, generally, from thirty to fifty dollars. 


CHAPTER XIV. 

PAYMENT AND TENDER. 


SECTION I. 

HOW PAYMENT MAY BE MADE. 

The obligations which arise out of most mercantile contracts 
are to be satisfied by payment of money. The parties may 
always agree to any specific manner of payment, and then that 
becomes obligatory on the creditor as well as the debtor. As, 
by deducting the amount to be paid from a debt due to the 
debtor either from the creditor or from any one else. Or the 
amount may be made, by agreement, payable by a bill or 
note. If the debt is to be paid by a bill, it must be such a bill 
as is agreed upon, and this must be tendered by the debtor. 
But the word “bill” does not necessarily mean an “approved 
billand if this phrase be itself used, it means only a bill to 
which there is no reasonable objection; that is, one which ought 
to be approved. 

In the absence of any especial agreement, the only payment 
known to the law is by cash, which the debtor must pay when 
it is due, or tender to the creditor. 

The tender should, properly, be in cash, or in bills made a 
legal tender by law, and must be so if that is required; but a 
tender in good and current bank-bills is sufficient, unless it be 
objected to because they are not money. 

Generally, if the tender be refused for any express and 
specific reason, the creditor cannot afterwards take advantage 
of any informality , to which he did not object at the time of the 
tender. 

The tender may be of a larger sum than is due. But a tender 




PA YMENT AND TENDER . 


148 

of a larger sum, if made with a requirement of change or of the 
balance, is not good. Nor must it be accompanied with a 
demand or condition that any instrument or document shall be 
delivered; nor that the sum tendered shall be received as ail 
that is due; nor that a receipt in full shall be given. But a 
simple receipt for so much money paid may be demanded. We 
have already seen that, if a receipt be given, it is only strong 
evidence of payment, but not conclusive. And even if it be 
“in full of all demands,” it is still open to explanation or denial 
by evidence. 

A lawful tender, and payment of the money into court, is a 
good defense to an action for the debt. But the creditor may 
break down this defense by proving that, subsequently to the 
tender, he demanded the money of the debtor, and the debtor 
refused to give it. 

If the buyer or debtor give, and the seller or creditor receive, 
a negotiable note or bill for the sum due, this is not anywhere 
absolute and conclusive payment. In Maine and in Massachu¬ 
setts the law presumes that such note or bill is payment of the 
debt, unless a contrary intention is shown. In nearly all the 
States of this Union but those two, and in the Supreme Court 
of the United States, it is not payment, unless the intention of 
the parties that it should be so is shown. In New York, it has 
been held that the debtor’s own promissory note is not payment, 
even if it be intended or expressly agreed that it should be. If 
a creditor, who receives from his debtor any bill or note, nego¬ 
tiates or sells it for value to a third party, without making 
himself liable, the bill or note was payment, although it be dis¬ 
honored, because it has been good to the debtor, and he has 
received the avails of it; and if the law did not hold that the bill 
had paid the debt, he could sue the original debt, and then he 
would have the value of the bill, or payment, twice. Not so, 
however, if he negotiates it in such a way that he is himself 
liable upon it; for if he pays it, he loses what he sold it for, 
unless he can recover his debt from his debtor. 


APPROPRIA TION OF PA YMENT. 


149 


SECTION II. 

APPROPRIATION OF PAYMENT. 

If one who owes several debts to his creditor makes to him 
a. general payment, it may be an important question to which 
of those debts this payment shall be appropriated; for some of 
them may be secured, and others not, or some of them may 
carry interest, and others not, or some of them be barred by 
the Statute of Limitations, and others not. 

There is no doubt that the payor may appropriate his pay¬ 
ment, at the time of the payment, at his own pleasure. And if 
he does not exercise this right, the receiver may, at the time of 
payment, make the appropriation. But if neither party does 
this at that time , and at a future period the question comes up 
as to which party may then make the appropriation, or rather, 
how the law will then appropriate the payment, it is then the 
better and prevailing rule, that, if the court can ascertain, 
either from the words used, or from the circumstances of the 
case, or from any usage, what was the intention and under¬ 
standing of the parties at the time of the payment, that inten¬ 
tion will be carried into effect. And if this cannot be ascertained, 
then the court will direct such appropriation of the payment as 
will best protect the rights and interests of both parties, and 
do justice between them. And one reason for this conclusion 
would be, that the law would presume that this was the original 
intention of the parties. A very general rule, which would 
indeed be always adopted in the absence of especial reason to 
the contrary, is, to apply the payment first to the oldest debt, 
until that is satisfied, and then go on applying the payment to 
the other debts in the order of their age. 

If A owes a debt to B, on B’s own account, and another 
debt to B as trustee for somebody, and A pays B a sum of 
money without appropriating it, B cannot apply it all to the 
debt, due him on his own account; but must divide it between 
that debt and the debt due to him as trustee, in proportion to 
their respective amounts. Because it is his duty as trustee to 
take as good care of the debts due to him for another, as of 
those due to him on his own account. 


RECEIPTS AND RELEASES. 


ISO 

We have spoken of a “ bill or note; ” and notes are some¬ 
times called bills; so bank-notes are often called bank-bills. 
But the legal meaning of “ bill ” is always a draft or order on 
somebody to pay money. A note is a promise to pay. See 
chapter on notes and bills. 


CHAPTER XV. 

RECEIPTS AND RELEASES. 

A receipt is only an acknowledgment that a sum of money 
has been paid. It may be in one word, as when, under a bill of 
parcels, the seller writes the word “ paid,” and signs it. More 
commonly the words are, ‘‘Received Payment.” Formerly it 
was usual to add the words “ Errors Excepted.” Then it grew 
customary to write the initial letters “ E. E.” instead of the 
words ; but all this is unnecessary. If there be an error in the 
receipt, or in the paper receipted, the law permits the party 
injured by it to explain and correct the error, although there be 
no express reservation or exception of errors. 

Receipts are of all degrees of fulness, from the single word 
“paid,” to those which relate the particulars for which the 
receipt is given, and the manner in which the money was paid, 
or the thing delivered. I give the following forms : 


( 45 .) 

{Date) This day I have received from 
.dollars. 


( 46 .) 

{Date) This day I have received from . 
.dollars, on account of 

( 47 .) 


(. Signature .) 


(i Signature .) 


{Date) This day the following {papers, or other articles, enumerating 
and describing them) were delivered to me by , {add, on account 

of, or in execution of, the promise or bargain, describing it; and, if they are 
delivered for any particular purpose, describe that), and I hereby acknowl¬ 
edge the receipt of them. 


{Signature.) 







FORMS OF RELEASES. 


151 

Every receipt is open to evidence, not only to explain it, 
but to contradict it. Herein releases differ from receipts. A 
release gives up some right or claim which the releasor had 
against the releasee. It is in the nature of a contract, and 
therefore cannot be controlled or contradicted by evidence, 
unless on the ground of fraud. But if its words are ambiguous, 
or may have either of two or more meanings, evidence is 
receivable to determine the meaning. 

Like every other contract, it requires a consideration, and 
is of no force without one. But here comes in the rule of law 
as to a seal. The general rule is, as has been stated before, a 
seal implies, or is the same as, the assertion of a consideration; 
and therefore it is always customary to put a seal to a release. 
But a release, even with a seal, if it can be shown to have been 
given without any consideration whatever, can be set aside. It 
is always best to state in the release itself that it was given for 
a consideration, and what the consideration is. A release 
properly drawn, and duly signed and sealed, is a complete 
defence to an action grounded on any of the debts or claims 
released. 

The following forms are for releases of various kinds: 

( 48 .) 

A General Release. 

Know all Men by these Presents, That I, (the name of the releaser) 
of for and in consideration of the sum of 

, to me paid by of , 

have remised, released, and forever discharged, and by these presents do, 
for me, my heirs, executors, and administrators, remise, release, and forever 
discharge the said his heirs, executors, and administrators, 

of and from all and all manner of action and actions, cause and causes of 
action, suits, debts, dues, sum and sums of money, accounts, reckonings, 
bonds, bills, specialties, covenants, contracts, controversies, agreements, 
promises, variances, damages, judgments, extents, executions, claims, and 
demands whatsoever, in law and in equity, which against the said 
I ever had, now have, or which I, my executors or administrators hereafter 
can, shall, or may have, for, upon, or by reason of, any matter, cause, or 
thing whatsoever, from the beginning of the world to the day of the date of 
these presents. 

In Witness Whereof, &c. 


152 


RECEIPTS AND RELEASES. 


( 49 .) 

A Mutual General Release by Indenture. 

This Indenture, Made between of 

and of , witnesseth, that the said 

doth, by these presents remise, release, and forever quit claim ; unto the said 
, all and all manner of actions, (as before ); and this 

indenture further witnesseth, that the said by these presents, 

doth remise, release, and forever quit claim, unto the said 
all and all manner of actions (as before ). 

In Witness Whereof, &c. 

( 50 .) 

A Release from Creditors to a Debtor, under a Composition. 

To all Persons to whom these Presents may come, we who have here¬ 
unto set our hands and seals, creditors of of , send 

greeting. Whereas the said is indebted to us his said 

creditors, in several sums of money, which he is not able fully to satisfy and 
discharge; we therefore have agreed, and do hereby agree, to accept of the 
sum of in full payment and satisfaction of all the debts, 

owing to us respectively at the date hereof, by and from the said 
which is paid by or for the said (the name of the debtor ) to (the names of the 
persons to whom the money is to be paid for the creditors releasing )* and 
assignees by virtue of a commission , of bankrupt awarded against the said 
, for the use of, and to the intent that the same may be 
shared and divided amongst us his said creditors, seeking relief tinder the 
said commission, in proportion and according to the debts to us severally 
due and owing : Now therefore know ye, that for the consideration aforesaid, 
each of us, the said creditors who have hereunto set our hands and seals, 
for him and herself, his and her heirs, executors, and copartners, doth by 
these presents, remise, release, and forever discharge the said 

his heirs, executors, and administrators, of and from our 
said several debts, and all and all manner of action and actions 

which against the said , each and 

every of us the said creditors now hath, or which each and every of our 
heirs, executors, or administrators, respectively, hereafter may, can, or 
ought to have, claim, or demand for, upon, or by reason of the said several 
and respective debts to us severally due and owing, or for or by reason 
of any other matter, cause, or thing whatsoever from the beginning of the 
world. 

In Witness Whereof, &c. 

( 51 .) 

A Release of all Legacies. 

Know all Men by these Presents, That I 
of widow, have remised, released, and forever quit-claimed, 


* The words following in Italic may be omitted according to circumstances. 



FORMS OF RELEASES. 


153 


and by these presents do for me unto of 

, gentleman, executor of the last will and testament of 
late of , deceased, and to the heirs, executors, 

and administrators of the said , all legacies, gifts, 

bequests, sum and sums of money and demands whatsoever, bequeathed 
and given unto me the said , in and by the last will 

and testament of , deceased, and all manner of actions 

and suits, sum and sums of money, debts, duties, reckonings, accounts, and 
demands whatsoever, which I the said ever 

had, now have, or that I, my executors or administrators, can or may, at any 
time or times hereafter, have, challenge, or demand against the said 

his executors, administrators, or assigns, for or by reason of any mat¬ 
ter, cause, or thing whatsoever, from the beginning of the world until the day 
of the date hereof. 

In Witness Whereof, etc. 

( 52 .) 

A Release of a Bond, it being Lost. 

To all to whom these Presents may come, {name of releaser) sendeth 
greeting. Whereas by his bond or obligation, bearing date 

{recite the bond), as by the said bond or obligation, and the condition 
thereof may appear : And whereas the sum of 

mentioned in the said bond, with all the interest for the same, is paid and 
satisfied unto me the said , in full discharge for the said bond or 

obligation : And whereas the said bond or obligation is lost, or at present 
mislaid, so that it cannot be found to be delivered up to the said , 

to be cancelled : Now know ye, that I the said 

for the consideration aforesaid, have remised, released, and quitclaimed, and 
by these presents do, for me, my executors and administrators, remise 

unto the said his heirs, executors, and 

administrators, as well the said recited bond or obligation, as all such sums 
of money as therein are mentioned to be due and payable, unto me the said 

my executors, administrators, or assigns ; 
and also all actions, suits, cause and causes of action, accounts, debts, reck¬ 
onings, sums of money, judgments, executions, and demands whatsoever, 
which I, the said ever had, now have, or that I, my 

executors, administrators, or assigns, or any of us, can or may have, for or 
against the said his executors or administrators, 

for, or by reason of, the said recited bond or obligation, or any other matter, 
cause, or thing whatsoever, concerning the same, from the beginning of the 
world to the day of the date hereof. 

In Witness Whereof, I the said have hereunto set 

my hand and seal this day of 

{Signatures) {Seals.) 

hi Presence of 


54 


RECEIPTS AND RELEASES. 

(The following covenant may be inserted before “In witness .”) 

And I, the said for me my executors , 

do covenant , to and with the said , his 

that if I the said , my executors, 

, or any of us, at any time hereafter, do find or can obtain the 
said recited bond or obligation, then I, the said , 

my executors , or some of us, shall and will, within 

two months next after the said obligation shall be found as aforesaid, deliver, 
or cause to be delivered, the said bond or obligation, unto the said 

his 

( 53 .) 

A Release of a Judgment. 

This Indenture, Made the day of 

in the year one thousand eight hundred and between 

of the second part, 

Whereas, Judgment was rendered on the day of 

in the year one thousand eight hundred and in an action in 

the between plaintiff and 

defendant in favor of the said against the said 

for the sum of as appears by the 

Now this Indenture Witnesseth, That the said part of the first 

part, in consideration of the sum of to duly paid 

at the time of the sealing and delivery of these presents, the receipt whereof 
is hereby acknowledged, ha granted, released, discharged and set over, 
and by these presents do grant, release, discharge and set over, unto the 
said part of the second part, the following described premises, to wit: 

Together with the hereditaments and appurtenances thereto belonging ; 
and all the right, title and interest of the said part of the first part, of, in 
and to the same to the intent that the lands hereby conveyed may be 
released and discharged from the said above-mentioned judgment, and from 
all lien or incumbrance that has attached to the same, by reason of the recovery 
of the said judgment, as free and clear in all respects as though said judg¬ 
ment had not been rendered. To have and to hold, the lands and premises 
hereby released and conveyed, to the said part of the second part 

heirs and assigns, to their only proper use, benefit 

and behoof forever, free, clear and discharged of and from all lien and claim, 
under and by virtue of the judgment aforesaid. 

In Witness Whereof, The said part of the first part ha hereunto 
set hand and seal the day and year first above written. 

( Signatures .) (Seals.) 


In Presence of 


FORMS OF RE LEA SES. 


155 


( 54 .) 

% A Release of a Condition. 

Know all Men by these Presents, That I, of 

, for divers good considerations me hereunto moving, 
have remised, released, and quit-claimed, and by these presents, for me, my 
executors, administrators, and assigns, do unto 

of , his heirs, executors, administrators, and assigns, as 

well one proviso or condition, and all and every the sum and sums of money, 
specified in the same proviso or condition, contained or comprised in one 
pair of indentures of bearing date , 

made between me, the said of the 

one part, and the said of the other part, and 

also all and all manner of actions and suits, cause and causes of actions and 
suits, for or concerning the said proviso or condition. 

In Witness Whereof, I the said have hereunto set my 

hand and seal this day of 

(Signature.) (Seal.) 

In Presence of 

( 55 .) 

A Release of a Covenant contained in an Indenture of 

Lease. 

To all Persons to whom these Presents may come, (name of release?) 
sendeth greeting. Whereas in and by an indenture of lease, bearing date 
made between , of the one part, and the said 

of the other part, there is contained a covenant in these words 
following, viz. ( recite the covenant verbatim , as therein contained) whereunto 
relation being had, it doth at large appear: Now know ye, that I, the said 

, for divers good causes and considerations, me 
hereunto moving, have remised, released, and quit-claimed, and by these 
presents for me do unto the said 

, his the said covenant, 

grant, clause, agreement, and article, before rehearsed or recited, and all and 
every other matter, thing and things specified, declared, and contained in 
the same covenant, clause, and agreement, and all the benefit, profit, advan¬ 
tage, and commodity, that by any manner of means, may or might arise, 
grow, come, or happen to me the said , for or by reason 

of the same covenant, clause, article, or agreement, or any word, sentence, 
matter, thing, or things therein contained, so that the said 
his executors and assigns, and every of them, from henceforth forever, shall 
be fully acquitted, released, and discharged against me the said 

my executors and administrators, and every of us, of, from, 
and for the said covenant, grant, clause, article, and agreement before 
rehearsed or recited, and of, from, and for, everything and things, touching 
the same (but this present release shall not in anywise extend to any other 
covenant, clause, or article in the said indenture contained). 


RECEIPTS AND RELEASES. 


I 5 6 

In Witness Whereof, I the said have hereunto set my 

hand and seal this day of 

( Signature.) (Seal.) 

In Presence of 

( 56 .) 

A Release in Extinguishment of a Power. 

To all Persons to whom these Presents may come, Now know ye, 
that I, the said , pursuant to the said agreement, and for 

divers good causes and considerations me hereunto moving, have released, 
extinguished, and discharged, and by these presents do fully and absolutely 
release, extinguish, and discharge, the said recited powerfor raising the said 
sum of as aforesaid, and all the lands 

therein comprised, or subject thereto, so that I, the said 
shall not, nor will, at any time or times hereafter, raise the same, or any part 
thereof, or hereafter charge the said lands with the 

payment thereof, or any part thereof. 

In Witness Whereof, I the said have hereunto set 

my hand and seal, this day of 

(, Signature.) (Seal.) 

In Presence of 

( 57 .) 

A Release from a Lessor to a Lessee (upon his surrendering 
his Lease) from the Covenants therein. 

To all Persons to whom these Presents may come, (name of releaser) 
sends greeting : Whereas the said by his indenture of lease, 

bearing date did demise unto 

a messuage in at a certain rent, for a cer¬ 
tain term of years, of which about years are yet to come 

and undetermined, in which said lease are contained covenants for repairing 
the said premises, and other covenants, on the part of the said 
to be performed. And whereas, by agreement between the said 
and the said 

hath delivered up the said recited lease, and surrendered the same, and all 
his interest and term in and to the said house and premises : Now therefore 
know ye, that the said , in consideration thereof, doth 

hereby, for himself, his heirs, executors, and administrators, remise, release, 
and forever discharge the said. his executors and admin¬ 

istrators, of and from all and every the covenants and agreements, in the said 
recited lease contained, by and on the part and behalf of the said 

his to be done and performed, and from all actions, 

suits, costs, charges, payments, damages, claims, and demands whatsoever, 
in law and equity, for or concerning the same in any manner of wise. 

In Witness Whereof, I the said have hereunto set my 

hand and seal this day of 

(Sigtiature.) (Seal.) 

In Presence of 


FORMS OF RELEASES. 


157 


( 58 .) 

* A G-eneral Release of Dower. 

To all to whom these Presents shall come, {name of releaser ) 

send greeting: Know ye, that the said the 

party of the first part to these presents, for and in consideration of the sum 
of lawful money of the United States, to her in hand paid at 

or before the ensealing and delivery of these presents, by of 

the second part, the receipt whereof is hereby acknowledged, hath granted, 
remised, released, and forever quit-claimed, and by these presents doth 
grant, remise, release, and forever quit-claim, unto the said party of the 
second part, heirs and assigns forever, all the dower and thirds, right 

and title of dower and thirds, and all other right, title, interest, property, 
claim and demand whatsoever, in law and equity, of her, the said party of the 
first part, of, in, and to {here describe the estate the dower in which is released) 

so that she, the said 

party of the first part, her heirs, executors, administrators or assigns, nor 
any other person or persons, for her, them, or any of them, shall not have, 
claim, challenge, or demand, or pretend to have, claim, challenge, or demand, 
any dower or thirds, or any other right, title, claim, or demand whatsoever, 
of, in, or to the same, or any part or parcel thereof, in whosesoever hands, 
seisin, or possession, the same may or can be, and thereof and therefrom shall 
be utterly barred and excluded forever by these presents. 

In Witness Whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 

In Presence of 

( 59 .) 

A Release of Dower to the Heir. 

Know all Men by these Presents, That I relict of 

late , as well for and in consideration 

of to me paid, at or before , by my son 

, the receipt whereof I do hereby acknowledge, and for 
the love and affection which I have to my said son, have granted, remised, 
released, and forever quit-claimed, and by these presents do 
unto the said his heirs and assigns forever, all the dower 

and thirds, right and title of dower and thirds, and all other right, title, inter¬ 
est, property claim, and demand whatsoever, in law and in equity, of me the 
said of, in, and to (a description of the parcel of land in which 

dower is released) so that neither I, the said my heirs, 

executors, or administrators, nor any other person or persons for me, them, 
or any of them, shall have, claim, challenge, or demand, or pretend to have 
any dower or thirds, or any other right to claim or demand 
of, in, or to the said premises, but thereof and therefrom, shall be utterly 
debarred and excluded, forever, by these presents. 


RECEIPTS AND RELEASES. 


I 5 8 

In Witness Whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

( Signature.) (Seal.) 

I11 Presence of 

( 60 .) 

A Release of Dower in Consideration of an Annuity given 

by Will. 

To all Persons to whom these Presents may come, (name of releaser) 
widow, relict and residuary legatee of late of , deceased, 

sendeth greeting. Whereas the said , in and by his last 

will and testament, duly signed, sealed, published, and declared in my pres¬ 
ence and with my approbation, bearing date , did settle 

and secure unto and upon me the said , an annuity of 

to be paid unto me half-yearly, by equal payments, in 
lieu and full satisfaction of the dower or thirds at common law, which I 
might otherwise have, claim, or be entitled unto, out of all and every the 
lands, tenements, and hereditaments whatsoever, of my said late husband, 
deceased, or of, in, to, or out of the reversion or remainder, rents, issues, 
and profits thereof: Now know ye, that I the said 

for and in consideration of the said annuity so secured to me as aforesaid, 
and in pursuance and part performance of the said last will and testament of 
my said late husband, do hereby declare myself fully satisfied and con¬ 
tented therewith, and do hereby remise, release, and forever quit-claim unto 
of , and of , trustees, 

appointed in and by the said last will and testament of my said late husband 
(in their actual possession and seisin now being) their executors 
all and all manner of dower in and to the said premises, but thereof and 
therefrom, shall be utterly debarred and excluded, forever, by these presents. 

In Witness Whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 

In Presence of 

( 61 .) 

A Release of Dower where the Husband of the Widow joins 
in the Deed. MSS. 

Know all Men by these Presents, That (name of husband ) of 

and (name of wife) his wife, in her right, in 

consideration of paid them by of 

the receipt whereof they hereby acknowledge, have granted, remised, released, 
and forever quit-claimed, and by these presents do unto 

the said his heirs and assigns forever, all the right 

which the said hath to dower or thirds, of and in (here 


FORMS OF RELEASES. 


159 

describe the estate ) whereof her late husband {name of former husband) late 
died seized, situate, , which she claims as of the 

endowment of the said deceased, and all the right, title, 

interest, and claim whatsoever, which the said and 

have, or either of them hath, or by law might have, of, in, and to the same 
: To have and to hold the same to the said 
and his heirs and assigns forever; and the said and 

for themselves, their heirs, executors, and administrators, 
do hereby covenant with the said and his heirs and assigns, 

that he and they shall henceforth forever, have and quietly enjoy the released 
premises, without any claim or demand had or made, or to be had or made 
by them, or any persons, claiming, or who may claim the same or any part 
thereof, by, from, or under them or their heirs. 

In Witness Whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature.) (Seat) 

In Presence of 

( 62 .) 

A Release of a Trust. 

To all to whom these Presents may come, (name of releaser) sendeth 
greeting. Whereas, by indenture bearing date , made between 

(here recite the deed) in which said indenture the said 
doth hereby declare, that his name was only used in 
trust, for the benefit and behoof of of : 

Now know ye, that I, the said , in discharge of the trust 

reposed in me, at the request of the said , have remised, 

released, and surrendered, assigned, and set over, and by these presents, for 
me, my executors and administrators, do freely and absolutely remise, 
unto the said his executors 

all the estate, right, title, interest, use, benefit, privilege, and demand what¬ 
soever, which I the said have, or may have or claim, of, 

or to the said premises, or of and in any sum of money, or other matter or 
thing whatsoever, in the said indenture contained, mentioned, and expressed, 
so that neither I the said my executors or administrators, 

or any of us, at any time hereafter, shall or will ask, claim, challenge, or 
demand any interest or other thing, in any manner whatsoever, 

by reason or means of the said indenture, or any covenant therein contained, 
but thereof and therefrom, and from all actions, suits, and demands, which I, 
my executors, administrators, or assigns, may have concerning the same, 
shall be utterly excluded and forever debarred, by these presents. 

In Witness Whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

(Signature) (Seal) 


In Presence of 


i6o 


RECEIPTS AND RELEASES . 


( 63 .) 

A Release of Right to Lands. 

Know all Men by these Presents, That I 0 name of releaser ) of 

, in consideration of to me paid by 

[name of releasee ) the receipt , have remised, released, 

and forever quit-claimed, and by these presents do unto 

the said and his heirs, all the estate, right, title, interest, 

use, trust, claim, and demand whatsoever, both at law and in equity, which I, 
the said have, of, in, to, or out of, all and singular the 

following described parcel of land ( here describe the land) so that neither I 
the said , my heirs or assigns, or any other person or 

persons in trust for me or them, or in my or their name or names, or in the 
name, right, or stead of any of them, shall or will, can or may, by any ways 
or means whatsoever, hereafter have, claim, challenge, or demand, any right, 
title, or interest, property, claim, and demand, of, in, to, or out of the same 
, or any of them, or any part thereof, but that I the said 
, my heirs, and assigns, and every of them, from all estate, right, 
title, interest, property, claim, and demand, of, in, to, or out of the said 

or any of them, or any part thereof, are, is, and shall be, by 
these presents forever excluded and debarred. 

In Witness Whereof, The said party of the first part to these presents 
hath hereunto set her hand and seal, the day of 

in the year of our Lord one thousand eight hundred and 

( Signature .) {Seal.) 

In Presence of 

( 64 .) 

A Release between two Traders on Settling Accounts. 

Whereas sundry accounts, current and otherwise, and divers dealings 
in trade have been subsisting for a long time past between of 

trader, and of trader, 

which said accounts and dealings, the said and 

have balanced and adjusted, whereby it appears that nothing 
remains due from the one to the other; and whereas, therefore, to prevent 
any future disputes concerning the said accounts and dealings, and to con¬ 
firm the said adjustment, the said and have 

mutually agreed to give reciprocal releases from each other. Now know all 
men by these presents, that the said {one of the parties) (for the consid¬ 
eration abovesaid, and to prevent all future disputes) for himself, his execu- • 
tors, and administrators, doth remise, release, and forever quit-claim unto 
the said {the other party) his all and all manner of 

action and actions, cause and causes of action, suits, debts, dues, sum and 
sums of money, accounts, reckonings, bonds, specialties, covenants, con¬ 
tracts, controversies, agreements, promises, variances, damages, extents, 
executions, claims and demands whatsoever, both at law and in equity, 


THE PURPOSE OF SUCH PAPERS. 


161 


which against the said his the said * 

now hath or ever had, on account of their said mutual dealings, or for or by 
reason of any other cause, matter, or thing whatsoever, from the beginning 
of the world to the day of the date of these presents. 

And the said (the other party) (for the consideration abovesaid, and 

to prevent all future disputes) for himself, his executors, and administrators, 
doth remise, release, and forever quit-claim unto the said {the other party), 

his all and all manner of action and actions, cause and causes of 

action, suits, debts, dues, sum and sums of money, accounts, reckonings, 
bonds, specialties, covenants, contracts, controversies, agreements, prom¬ 
ises, damages, extents, executions, claims, and demands whatsoever, both at 
law and in equity, which against the said his 

the said now hath or ever had, on account of their said mutual 

dealings, or for or by reason of any other cause, matter, or thing whatso¬ 
ever, from the beginning of the world to the day of the date of these 
presents. 

In Witness Whereof, we have hereunto set our hands and seals, this 
day of in the year 

{Signatures) {Seals.) 

In Presence of 


CHAPTER XVI. 

NOTES OF HAND AND BILLS OF EXCHANGE, DRAFTS, AND 

CHECKS. 


SECTION I. 

THE PURPOSE OF, AND THE PARTIES TO, SUCH PAPERS. 

These instruments are usually negotiable. By negotiable 
paper is meant evidence of debt which may be transferred by 
indorsement or delivery, so that the transferee or holder may 
sue the same in his own name, and as if it had been made to 
him originally; or, in other words, it means paper, that is, bills 
of exchange or promissory notes, or drafts, or checks, payable 
to the order of a payee, or to bearer. 

The rules of law on the subject of negotiable paper are 
more exact and technical than those of any other department 
of Mercantile Law. They reach, on many points, an extreme 
nicety, which makes it difficult to express them intelligibly to 
11 




162 NOTES OF HAND , BILLS OF EXCHANGE , ETC. 


persons who do not already possess some familiarity with the 
subject. All difficulty of this kind could have been easily 
avoided by me by omitting any notice of these nice points. 
But it was thought better to mention them, one and all, for 
these are the things an intelligent man of business should know: 
and although the rules stated, especially those in reference to 
presentment, demand, notice, and some other subjects, may 
seem to be intricate and difficult, they require, it is believed, 
only careful consideration to be fully understood. 

Where and when bills of exchange were invented is not cer¬ 
tainly known. They were not used by any ancient nations, but 
have been employed and recognized by most commercial 
nations for some centuries. A still more recent invention is 
the promissory negotiable note, which, in this country, for inland 
and domestic purposes, has taken the place of the bill of 
exchange very generally. Besides these two, bills of lading, 
and some other documents, have a kind of negotiability, but it 
is quite imperfect. The utility of bills and notes in commerce, 
arises from the fact that they represent money, which is the 
representative of the market value of everything; and many 
of the peculiar rules respecting negotiable paper are derived 
from this representation, and intended to made it adequate and 
effectual. 

A negotiable bill of exchange is a written order whereby A 
orders B to pay to C or his order , or to bearer> a sum of money 
absolutely and at a certain time. 

( 65 .) 

Common Form of a Bill of Exchange. 

$ New York, January , 18 . 

days (or months) after sight, (or At sight,) pay to the order of 
C dollars. Value received, and charge the 

same to account of 

(Signed) A 

To B 

A is the Drawer, B the Drawee, and C the Payee. If the 
bill is presented to B, and he agrees to obey the order, he 
“accepts” the bill, and this he does in a mercantile way by 
writing the word “Accepted” across the face of the bill, and 


COMMON FORMS OF PRO MISS OR Y NO TES. 163 

also writing his name below this word; then the Drawee 
becomes the Acceptor. If C, the payee, chooses to transfer 
the paper and all his rights under it to some other person, he 
may do this by writing his name on (usually across) the back 
this is called Indorsement, and C then becomes an Indorser. 
The person to whom C thus transfers the bill is an Indorsee. 
The indorsee may again transfer the bill by writing his name 
below that of the former Indorser, and the Indorsee then 
becomes the second Indorser; and this process may go on 
indefinitely. If the added names cover all the back of the 
note, a piece may be wafered on to receive more. In France, 
this added piece is called “allonge,” and this word is used in 
some law-books, but not by our merchants. 

Promissory notes of hand are written in many ways, which, 
however, differ only in the different words in which they 
express the same thing. We will first give the full Form of a 
technically accurate note, and afterwards of the more usual 
Forms: 

( 66 .) 

New York, January 5, 1878. 

For value received, I promise John Smith to pay to'him or to his order, 
one thousand dollars in three months from this day, with interest from date. 

Henry Simmons. 

But promissory notes are seldom, if ever, written in this * 
way in practice. They are shortened and simplified in a great 
variety of ways, mercantile usage having given a meaning to 
expressions which the law accepts and enforces. Some of the 
more common forms in use are as follows : 

$r,ooo -&V New York, January 5, 1869. 

Three months after date, I promise to pay to the order of John Smith, 
one thousand dollars, at the North River Bank, value received. 

Henry Simmons. 

If it is intended that more than one person shall be liable 
on the note, the following is a customary form: 

$1,000 fifo. New York, January 5, 1882. 

Value received, we jointly and severally promise to pay to Robinson, 
Wellman & Co., or order, one thousand dollars in three months from 
date. 


j 64 NOTES OF HAND , BILLS OF EXCHANGE , 2s7T\ 

“ With interest” may be added if that is agreed upon, other¬ 
wise it bears no interest until after it is due. So it may be “ on 
demand/’ in which case it bears no interest until after demand is 
made; “after date” or “from date,” should be written, 
although the law would supply these words. 

If the note be signed by more than one person, all the 
signers, whether the note says “I promise” or “We promise,” 
are liable jointly ; but only jointly and not jointly and severally 
unless the note says so. 

Generally speaking, notes are not made payable at any par¬ 
ticular place. But they may be made payable at any bank, or 
the promisor’s own house or office, or wherever else he chooses. 
The effect of making a note payable at a certain place is this * 
In this country neither a promissory note nor a bill of exchange 
drawn payable at a certain place, nor a bill accepted payable at 
a certain place, need be presented at that place in order to sus¬ 
tain an action against the maker of the note or the acceptor of 
the bill; but he may show, by way of defence, that he was ready 
at that place with funds to pay the note or bill, and then he will 
escape all damages and interest. And if he can show a posi¬ 
tive loss from the want of such presentment,—as, for instance, 
by the subsequent failure of a bank where he had placed funds 
to meet the note or bill,—be will be discharged from his lia¬ 
bility on the paper to the amount of the loss. But the drawees 
of the bill and the indorsers of the bill or note are discharged 
by a neglect to demand payment at such specified place. 

In some States, Indiana, for example, it is customary to add 
“without relief from valuation and appraisement laws;” and 
also, “if the note is not paid at maturity five per cent, shall be 
added and collected as attorney’s fees.” 

If the note be secured by mortgage it is usual to attach to 
the note coupon notes, each of which is for six months’ interest; 
and also a power of attorney to some attorney to confess judg¬ 
ment. We give below a full Form for such additions to a note 
of hand, given in Chicago to a lender in Boston : 

$2,000. Chicago, Illinois, May 8th, 1875. 

Three (3) years after date, for value received, I promise to pay to 

or order, the principal sum of Two 


COMMON FORMS OF PROMISSORY NOTES. 


165 

Thousand Dollars, with interest thereon at the rate of Ten (10) per cent per 
annum, payable semi-annually, on the 8th days of November and May, in 
each and every year until said principal sum is fully paid, both principal and 
interest payable at the office of t 

Boston, Massachusetts. 

The several installments of interest aforesaid for said period of Three 
(3) years are further evidenced by Six (6) interest notes of even date here¬ 
with. 

And I agree that if default be made on the payment of any one of the 
interest installments at the time and place the same become due as above, 
and if said default shall continue for twenty days thereafter, then if the legal 
holder or holders of the principal note shall so elect, at any time after said 
twenty days, the principal sum of. Two Thousand Dollars shall at once and 
without notice of such election made, become due and payable. 

This note is secured by Trust Deed. 

Know all Men by these Presents, That whereas I, the subscriber, 
am justly indebted upon a certain Promissory Note of even date herewith, 
due in Three (3) years after date to 

or order, for the sum of Two Thousand (2,000) Dollars, with interest at the 
rate of Ten (10) per cent, per annum, payable semi-annually on the Eighth (8th) 
days of November and May, in each and every year until said principal sum 
is paid, and interest evidenced by Six (6) Interest Coupon Notes of even 
date, both principal and interest payable at the office 
Boston, Massachusetts. 

And whereas the said principal note contains an agreement that if default 
be made in the payment of any one of the interest installments at the time and 
place the same becomes due, and if the said default shall continue for twenty 
days thereafter, then, if the legal holder or holders of said principal note 
shall so elect at any time after said twenty days, the principal sum of Two 
Thousand (2,000) Dollars shall at once, and without notice of election made, 
become due and payable. 

Now Therefore, in consideration of the premises, I do hereby make, 
constitute, and appoint , or any 

Attorney of Court of Record, to be my true and lawful attorney irrevocably 
for me in my name, place, and stead, to appear in any Court of Record in 
term-time or vacation, in any of the States or Territories of the United 
States, at anytime after said note, according to its tenor therein set forth, or 
the interest thereon becomes payable, to waive service of process, accept a 
declaration and confess judgment in favor of the said 

or his assigns upon said note for the sum of Two Thous¬ 
and (2,000) Dollars and interest unpaid, at the rate therein mentioned, up 
to the day of said judgment, together with costs and Thirty (30) Dollars 
attorney’s fees. And also to file a cognovit for the said amount and interest, 
with an agreement therein that no writ of error or appeal shall be prosecuted 
upon the judgment entered by virtue hereof, or any Bill of Equity filed to 


166 NOTES OF HAND , BILLS OF EXCHANGE , £T6. 


interfere with the operation of said judgment, and to release all errors that 
intervene in the entering up of said judgment or issuing execution thereon, 
and to consent to immediate execution upon said judgment. Hereby ratify¬ 
ing and confirming all that my said Attorney may do by virtue hereof. 

Witness my hand and seal, this Eighth (8th) day of May, A. D. one 
thousand eight hundred and seventy-five (1875.) 

In Presence of 

Chicago, Illinois, May 8th, 1875. 

Due to or order, One Hundred 

Dollars on the 8th day of November, A. D. 1875, without grace, at the 
office of , Boston, Massachusetts, 

with interest at the rate of ten per cent, per annum after maturity, being for 
an installment of interest due on that day upon my principal promissory note 
of even date herewith, payable to 

or order, three (3) years after its date, for the sum of Two Thousand (2,000) 
Dollars secured by trust deed. 

In consideration of the premises, I do hereby make and appoint 

or any other Attorney of any Court 
of Record in the United States of America, to be my true and lawful 
Attorney for me in my name, place, and stead, to appear in any Court of 
Record in term-time or vacation, in any State, District, or Territory of the 
United States, at any time after this interest coupon becomes due, to waive 
service of process, accept a declaration, and confess a judgment in favor of 
the legal holder hereof for the amount due and unpaid hereon, with interest 
as aforesaid to the day of entering such judgment, together with costs, and 
twenty dollars for the attorney’s fee, and to file a cognovit for such amounts, 
with an agreement therein that execution may issue forthwith, and that no 
writ of error or appeal shall be prosecuted upon such judgment, nor any Bill 
in Equity filed to interfere in any manner with the operation of said judg¬ 
ment, and to release all errors that may intervene in the entering up said 
judgment and issuing the execution thereon. 

Hereby ratifying and confirming all that my said attorney may do by 
virtue hereof. 

No protest. 

Five other coupon notes for interest are added 


It is quite important to have a clear idea of the difference 
between the parties to a note, and the parties to a bill of 
exchange. If A makes a note to B, then A promises to pay, 
and is the promisor, and B is the promisee, or payee. But if it 
be payable to B or order, B may write his name across the back, 
that is, may indorse it, and is an indorser. And if he directs, 
over his signature on the back, that the note be paid to any 
person in particular, such payee is now an indorsee. But when 


COMMON FORMS OF PROMISSORY NOTES. 


167 

a bill is drawn, nobody promises, in words, to pay it. A orders 
B to pay to C. If B, when requested, says he will not do as 
ordered, the law supposes A, the drawer, to have promised that 
he would pay if B did not. If B “accepts,” the law now 
supposes that B promises C to pay the bill to him. Now B, 
being the acceptor, is held by the law just as a maker of a note 
is, because he is supposed to have promised in the same way. 
A, the drawer, is held just as the first indorser of a note is held, 
because he is supposed to have promised to pay if B did not. 
If the bill was negotiable, that is, payable to C, or his order, 
then C may indorse the bill, and although his name is the only 
one on the back of the bill, he is treated in law only as second 
indorser, because the drawer is bound in the same way as a first 
indorser. And if D then puts his name below C’s, he is treated 
as third indorser, and so on. For the rights, obligations, and 
duties of all these parties, see the subsequent sections. 

We repeat, that a negotiable promissory note is a written 
promise to pay to a certain person or his order, or to bearer, at 
a certain time, a certain sum of money; and he who signs this 
is called the Maker or the Promisor; the other party is the 
Promisee or Payee. The payee of such a note has the same 
power of indorsement as the payee of a bill of exchange. If 
the note be not payable “to order,” nor to “bearer,” it is then 
not negotiable; these words “or order” or “to bearer” being 
the words which make it negotiable. The maker of a negoti 
able note holds, as has been said, the same position as the 
acceptor of a bill, the drawer the same as the first indorser of a 
note; that is, a party holding a note and seeking payment of it 
looks first to the maker, and then to the endorser; one holding 
a bill looks first to the drawee or acceptor, and, on his failure, 
to the drawer. 

Neither indorsement, nor acceptance, nor making, is com¬ 
plete until delivery and reception of the bill, or note, or 
acceptance; and a defendant may show that there was no legal 
delivery of the paper. 

The law of negotiable paper first defines a bill or note, and 
determines what instruments come under these names, and then 
describes and ascertains the duties and obligations of all the 
parties we have named above. We shall follow this order. 


!58 notes of hand, bills of EXCHANGE, ETC: 


SECTION II. 

- WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE OR BILL. 

A written order or promise may be perfectly valid as a 
written contract or promise, but, although made “to order,” will 
not be negotiable , unless certain requisites of the law-merchant 
are complied with. 

The difference between a note that is negotiable and one 
that is not, is very important in many respects. One of these 
is as to the operation of the trustee process, or foreign attach- 
ment, or garnishee process, as it is sometimes called. If A 
owes B a hundred dollars, C, a creditor of B, may trustee A 
(to use the common phrase), and A must then pay to C what he 
owes to B. And this is so, even if A have given his note to B 
for the hundred dollars, if the note be not negotiable , that is, 
not to B or order. But if the note be negotiable, A cannot be 
trusteed. The reason is, that if he is obliged to pay the money 
to C, and B should indorse the note to D for value, and D take 
it honestly, A must pay the note to D, and so would have to 
pay it twice. But if the note is not negotiable, B cannot indorse 
it and A is safe in paying the money over. 

i. The Promise must be absolute and definite. —The 
promise of the note, and the order of the bill, must be absolute. 
Words expressive of intention only do not make a promissory 
note, and a mere request without an order does not make a bill 
of exchange. But no one word, and no set of words, are abso¬ 
lutely necessary; for if from all the language the distinct 
promise or positive order can be inferred, that is sufficient. 

The time of payment is usually written in a bill or note; if 
not, it is payable on demand. The time of payment must not 
depend on a contingency. In fact, any* contingency apparent 
on the face of the instrument prevents it from being a negotiable 
note; and the happening of the contingency does not cure it. 
And the payment promised or ordered must be of a definite 
sum of money. 

A negotiable bill of exchange or promissory note must be 
payable in money only, and not in goods or merchandise, or 
property of any kind, or by the performance of any act. If 


WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE . rfg 

payable in “current funds,” or “good bank-notes,” or “current 
bank-notes,” this should not be sufficient on general principles, 
and according to many authorities; some courts, however, com 
strue this as meaning notes convertible on demand into money, 
and therefore as the same thing as money, and call the note 
negotiable. 

A bill or note may be written upon any paper or proper 
substitute for it, in any language, in ink or pencil. A name 
may be signed or indorsed by a mark; and, though usually 
written at the bottom, it may be sufficient if written in the 
body of the note; as, “I, A B, promise,” &c.; unless it can be 
shown that the note was incomplete, and was intended to be 
finished by signature. If not dated, it will be considered as 
dated when it was made; but a written date- is prima facie 
evidence (this means evidence which may be overcome by 
opposite and better evidence, but until so overcome is sufficient) 
of the time of making. The amount is usually written in 
figures at the corner or bottom. If the sum is written at length 
in the body, and also in figures at the corner, the written words 
control the figures, and evidence is not admissible to show that 
the figures were right and the words inaccurate. But in an 
American case, a promissory note, expressed to be for “thee 
hundred dollars,” and in figures in the margin, $300, was held 
to be a good note for three hundred dollars, if the maker when 
he signed it intended “three” when he wrote “thee;” and 
whether such was his intention was a question for the jury. 
And the omission of such a word as “dollars,” or “pounds,” or 
“sterling,” may be supplied, if the meaning of the instrument 
is quite clear. 

It has been just said that any contingency apparent on the 
face of the instrument prevents it from being a negotiable note. 
Hence it is not safe to write in the body of the note, or in 
connection with the promise, any condition or contingency. 
But, if what is so written in no way affects the promise itself, 
the note may still be negotiable. 

Thus, in some parts of this country, persons who sell a 
machine, or other thing, on a credit, sometimes take a promis¬ 
sory note payable to the seller or order, and containing an 


lyo NOTES OF HAND , BILLS OF EXCHANGE , ETC. 

additional clause, providing, that, until the note is paid, the 
property in the thing sold (or the ownership of it) shall be and 
remain in the seller. Such notes are often made in the follow¬ 
ing form: 

( 07 .) 

Form of a Note given for a Chattel sold, with a Condition 
preserving the Ownership of the Seller. 

$ {Place and date) 18 

On the day of 18 the subscriber whose P. O. 

is , County of and State of , 

promise to pay , or order dollars at the First 

National Bank in with interest at per cent, per annum until 

paid. And it is further agreed that the title to the {reaper) for which this 
note is given shall remain in said {the seller) until this note is fully paid ; 
and, if not paid when due, I will pay all expenses incurred in collecting. 
Value received 

{Witness) {Signature) 


On the back of this note is sometimes the following state¬ 
ment: 

Statement made for the Purpose of obtaining Credit. 

I own acres of land in my own name in the Town of 

County of and State of which is worth at a fair 

valuation, $ 

It is not incumbered by mortgage or otherwise, except the amount of 
$ , and the title is perfect in me in all respects. I have stock and 

personal property to the amount of $ over and above my debts 

and liabilities. 

The above property being worth over and above my debts, liabilities, and 
exemptions at least five times the amount of the within note. 


The question has arisen whether such a note is negotiable. 
Suppose the seller of the chattel, who is payee of the note, sells 
the note and indorses it for value to an innocent indorsee; then 
the buyer finds that he was cheated, and puts in this defence of 
fraud when he is sued on the note by the indorser. He 'can 
make this defence if this note be not negotiable; but he cannot 
make it if it be negotiable. I should say it was negotiable; and 
that the only effect of the condition or provision annexed to the 
promise, was, that it operated much as a mortgage of the thing, 
by the buyer, back to the seller, to secure the payment. 

2. The Payee must be designated. —The payee should be 


WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE . jy z 

distinctly named, unless the bill or note be made payable to 
bearer. If it can be gathered from the instrument, by a 
reasonable or necessary construction, who is the payee, that is 
enough. The note may be made payable to the promisor or his 
order; that is, a man may say, I promise to pay to my own 
order; and such note is nothing until the promisor not only 
signs it, but indorses it. 

A note indorsed in blank is always transferable by delivery, 
just as if it were made payable to bearer; because any holder 
may write over the indorsement an order to pay to himself. 
Indorsements are either indorsemerits in blank , by which is 
meant the name of the indorser and nothing more, or indorse¬ 
ments in full , which are so called when over the name c f the 
indorser is written, “pay to A B.” (By A B we mean the name 
of the person to whom the note or bill is indorsed.) These two 
kinds of indorsements are fully explained subsequently in 
section VI. of this chapter. A note to the order of the promi¬ 
sor himself, and indorsed by him in blank, is therefore much 
the same thing as a note to bearer. But it is quite commonly 
used in our mercantile cities, because the holder can always 
pass it away without indorsing if he chooses, or can put his 
name on it as second indorser if he likes to. If the indorsee 
be named, and the note get into the possession of the wrong 
person of the same name, this person neither has nor can give 
a title to it. If the name be spelt wrong, evidence of intention 
is receivable. If a father and son have the same name, and 
either of them has possession of the note and indorses it, this 
would be evidence of his rightful ownership. 

If neither payable to bearer, nor to the maker’s or drawer’s 
order, nor to any other person, it would be an incomplete and 
invalid instrument. 

A note to a fictitious payee, with the same name indorsed by 
the maker, would undoubtedly be held to be the maker’s own 
note, either payable to bearer, or to himself or order, by another 
name, and so indorsed. If a blank be left in a bill for the 
payee’s name, a boiid fide holder may fill it with his own, the 
issuing of the bill in blank being an authority to a bond fide 
holder to insert the name. And if the name of the payee be 


172 NOTES OF HAND , BILLS OF EXCHANGE , 

not the name of a person, as if it be the name of a ship, the 
instrument is payable to bearer. A note payable to different 
persons in the alternative, that is, to one or the other of them, 
is not a good promissory note. A bill or note “ to the order 
of” any person is the same as if to him “or his order,” and may 
be sued by him without indorsement. 

3. Of Ambiguous and Irregular Instruments. —The law 
in relation to protest and damages makes it sometimes import¬ 
ant to distinguish between a promissory note and a bill of 
exchange, because, by law, a foreign bill of exchange, if unpaid, 
should be protested, but not a promissory note ; but it is a com¬ 
mon practice to protest promissory notes when they are not paid. 
The rule in general is, that, if an instrument be so ambiguous 
in its terms that it cannot be certainly pronounced one of these 
to the exclusion of the other, the holder may elect and treat it 
as either. As if written, “ Value received, in three months from 
date, pay the order of H. L. $500. (Signed) A. B.;” and an 
address or memorandum at the bottom, “ At Messrs. E. F. & 
Co.” 

4. Of Bank-Notes. —Bank-notes or bank-bills are promis¬ 
sory notes of a bank, payable to bearer; and, like all notes to 
bearer, the property in them passes by delivery. They are 
intended to be used as money; and, while a finder, or one who 
steals them, has no title himself against the owner, still, if he 
passes them away to a bond fide holder, that is, a holder for value 
without notice or knowledge, such owner holds them against 
the original owner. And if the bank pays them in good faith 
on regular presentment, the owner has no claim. They pass by 
a will bequeathing money. They are a good tender, unless 
objected to at the time because not money. Forged bills, given 
in payment, are a mere nullity. Bills of a bank which has failed, 
but of which the failure is unknown to both parties, are now, 
generally, put on the footing of forged or void bills. But if the 
receiver of them, by holding them, and by a delay of returning 
or giving them up, injures the payer and impairs his opportunity 
or means of idemnity, the receiver must then lose them. 

5. Of Checks on Banks. —A check on a bank is undoubt¬ 
edly a bill of exchange ; but usage and the nature of the case 


WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE. ^3 

have introduced some important qualifications of the general 
law of bills in its application to checks. A check requires no 
acceptance, because a bank, after a customary or reasonable 
time has elapsed since deposit, and while still in possession of 
funds, is bound to pay the checks of the depositors. The drawer 
of a check is not a surety, as is the drawer of a bill, but a.prin¬ 
cipal debtor, like the maker of a note. Nor can a drawer com¬ 
plain of any delay whatever in the presentment; for it is an 
absolute appropriation, as between the drawer and the holder, 
to the holder of so much money in the banker’s hands; there it 
may lie at the holder’s pleasure. But delay is at the holder’s risk ; 
for if the bank fails after he could have got his money on the 
check, the loss is his. If the bank before he presents his check 
payout all the money of the drawer on other checks, he may then 
look to the drawer. 

If one who holds a check as payee, or otherwise, transfers it 
to another, he has a right to insist that the check shall be pre¬ 
sented in the course of the banking hours of that day, or at 
farthest the next; that is, he is not responsible for the failure 
of the bank to pay, unless it is so presented, provided it would 
then have been paid. And if the party receiving the check live 
elsewhere than where the bank is, it seems that he should send 
it for collection the next day ; and if to an agent, the agent should 
present it at latest, in the course of the day after he received 
it. If the check be drawn when the drawer neither has 
funds in the bank, nor has made any arrangement by which he 
has a right to draw the check, the drawing it is a fraud, and the 
holder may bring his action at once against the drawer, without 
presentment or notice. 

Checks are seldom accepted. But they are often marked by 
the bank as good, and this binds the bank as an acceptor. 

Checks are usually payable to bearer, but may be and often 
are drawn payable to a payee or his order ; for this guards against 
loss or theft, because the check will not be paid unless the payee 
writes his name on it; and it gives to the drawer, when the check 
is paid and returned by the bank to him, what is the same as 
the receipt of the payee. Generally, a check is not payment 
until it is cashed ; then it is payment if the money was paid to 


jy 4 NOTES OF HAND , BILLS OF EXCHANGE , ETC. 

the creditor, or the check had passed through his hands. A 
bank cannot maintain a claim for money lent and advanced, 
'merely by showing the defendant’s check paid by them, because 
the general presumption is, that the bank paid the check because 
it was drawn by a depositor against funds. 

While the death of a drawer countermands his check, if the 
bank pay it before notice of the death reaches them, they are 
discharged. This would seem to be almost a necessary infer¬ 
ence from the general purpose of banks of deposit, and the use 
which merchants make of them. 

If a bank pay a forged check, it is so far its own loss, that 
the bank cannot charge the money to the depositor whose name 
was forged. But the bank could recover the money back from 
one who presented a forged check, and was paid, provided the 
payee, if innocent, loses no opportunity of indemnity in the mean¬ 
time, and can be put in as good a position as if the bank had 
refused to pay it. But if somebody must lose, the bank should, 
because it is the duty of the bank to know the writing of its own 
depositors. If it pay a check of which the amount has been 
falsely and fraudulently increased, it can charge the drawer only 
with the original amount. But if the drawer himself causes or 
facilitates the forgery, as by so carelessly writing it, or leaving 
it in such hands, that the forgery or alteration is easy, so that 
it may be called his fault, and the bank is innocent, then the 
the loss falls on the drawer. If many persons, not partners, join 
in a deposit, they must join in a check ; but if one or more 
abscond, a court of equity will permit the remainder to draw 
the money. 

6. Of Accommodation Paper. —An accommodation bill or 
note is one for which the acceptor or maker has received no con¬ 
sideration, but has lent his name and credit to accommodate 
the drawer, payee, or holder. Of course he is bound to all other 
parties, precisely as if there were a good consideration; for, 
otherwise, it would not be an effectual loan of credit. But he is 
not bound to the party whom he thus accommodates; on the 
contrary, that party is bound to take up the paper, or to provide 
the accommodation acceptor, or maker, or indorser, with funds 
for doing it, or to indemnify him for taking it up. And if, before 


WHAT IS ESSENTIAL TO A NEGOTIABLE NOTE . 175 

/he bill or note is due, the party accommodated provides the 
party lending his credit with the necessary funds, he cannot 
recall them ; and if he becomes bankrupt, they remain the 
property of the accommodation acceptor, or maker, who, if sued 
on the bill or note, can charge the party accommodated with 
the expense of defending the suit, even if the defence were 
unsuccessful, if he had any reasonable ground of defence, 
because the defence was for the benefit of the party accommo¬ 
dated ; inasmuch as he must repay the accommodation party if he 
pays the bill or note. 

7. Of Foreign and Inland Bills. —Bills of exchange may 
be foreign bills, or inland bills. Foreign bills are those which 
are drawn or payable in a foreign country ; and for this purpose, 
each of our States is foreign to the others. Inland bills are 
drawn and payable at home. Every bill is, on its face, an inland 
bill, unless it purports to be a foreign bill. If foreign on its 
face, evidence is admissible to show that it was drawn at home. 
If a bill be drawn and accepted here, but afterwards actually 
signed by the drawer abroad, it is a foreign bill. If a foreign 
bill be not accepted, or be not paid at maturity, it should at once 
be protested by a notary public. Inland bills are generally, and 
promissory notes frequently, protested ; but this is not gener¬ 
ally required by the law. The holder of a foreign bill, after 
protest for non-payment, or for non-acceptance, may sue the 
drawer and indorser, and recover the face of the bill, and, in 
addition thereto, his damages, which damages on protest are 
generally adjusted in this country by various statutes,—which 
give greater damages as the distance is greater; and an estab¬ 
lished usage would supply the place of statutes if they were 
wanting. 

8. Of the Law of Place. —The different States of the 
Union are, as to questions arising under Mercantile Law, 
foreign countries as to each other. Important questions some¬ 
times arise in the case of foreign bills (as well as in some other 
cases), dependent upon what is called the Law of Place, the 
Latin phrase for which, Lex Loci , is often used. In general, 
every contract is to be governed by the law of the place where 
it is made. Thus, if a bill is drawn in France, and there 


176 NOTES OF HAND , BILLS OF EXCHANGE, ETC. 

indorsed in a way which is sufficient here, but insufficient there, 
the indorsement would here be held void. But if a contract 
entered into in one place is to be performed in another, as in 
the case of a note dated, or a bill drawn, in one State, but 
payable in another, the prevailing rule is, that the law of the 
place where the note is payable construes and governs the 
contract. Therefore, if a bill be drawn in England, payable in 
France, the protest and notice of dishonor must be regulated 
by the law of France. But one who makes such a note may 
elect, for many purposes, which law shall govern it. Thus, if 
he makes it in New York, and it is payable in Boston, he may 
promise to pay the legal interest of New York, and will be 
bound to this payment in Boston, although the legal interest in 
Boston is less; but if there be no such express promise, the 
interest payable will be that of the place where the note is 
payable. 

While the law of the place of the contract interprets and 
construes it as a debt, the law of the place where it is put in 
suit—which is called the Law of the Forum, or Court—deter¬ 
mines all questions as to remedy; that is, all questions which 
relate to the legal means of recovering the debt. Thus, in 
general, the statutes of limitation of the place of the court are 
applied. But if a cause of action relating to any special sub¬ 
ject-matter which has a definite location, as a parcel of land has, 
be barred by a statute of limitations where the subject-matter 
is situated, it is barred everywhere. A‘promisor, not subject 
to arrest in the country where the note is made, may be arrested 
under the laws of the country where the note is sued. 

It will always be presumed, in the absence of testimony, 
that the law of a foreign country is the same with that of the 
country in which the suit is brought. If a difference in this 
respect is a ground of defence, or of action, it must be proved 
by evidence. 

SECTION III. 

THE CONSIDERATION OF NEGOTIABLE PAPER. 

i. Exception to the Common Law Rule, in the Case 
of Negotiable Paper.— By the common law of England and 
of this country, as we have seen, no promise can be enforced, 


THE CONSIDERATION OF NEGOTIABLE PAPER, jyy 

unless made for a consideration, or unless it be sealed. But bills 
and notes payable to order, that is, negotiable, are, to a certain 
extent, an exception to this rule. Thus, an indorsee cannot be 
defeated by the promisor showing that he received no considera¬ 
tion for his promise ; because the promisor made an instrument 
for circulation as money; and it would be fraudulent to give to 
paper the credit of his name, and then refuse to honor it. But 
as between the maker and the payee, or between indorser and 
indorsee, and, in general, between any two immediate parties, 
the defendant may rely on the want of consideration; that is, 
if an indorsee sues the maker, and the maker says he had no 
consideration for the note, this is no defence ; but if the indorsee 
sues his indorser, and the indorser shows that the indorsee paid 
him nothing, this would be a good defence ; and so it would be 
if the payee sued the maker. So, if a distant indorsee has 
notice or knowledge, when he buys a note, that it was made 
without consideration, he cannot recover on it against the 
maker, unless it was an accommodation note, or was intended 
as a gift. 

Thus, if A, supposing a balance due from him to B, gives 
B his negotiable note for the amount, and afterwards discovers 
that the balance is the other way, B cannot recover of A ; nor 
can any third or more distant indorsee who knows these facts 
before buying the note. But if A gives B his note wholly 
without consideration, for the purpose of lending him his credit, 
or for the purpose of making him a gift to the amount of the 
note, and C buys the note with a full knowledge of the facts, 
he will nevertheless hold A, although B could not. If the note 
was bought honestly for a fair price, the buyer should recover 
its whole amount. Every promissory note imports a considera¬ 
tion ; that is, none, in the first place, need be proved; but 
when want of consideration is relied on in defence, and evidence 
is given on one side and the other, the burden of proof is on 
the plaintiff to satisfy the jury that consideration was given. 

If an indorser, sued by an indorsee, shows that the note 
was originally made in fraud, he may require the holder to 
prove that he paid consideration; but if this be proved, he 
must pay the whole of the note, unless he was himself defrauded 
12 


lyS NOTES OF HAND , BILLS OF EXCHANGE , ETC. 

by the holder. And if an accommodation note be discounted 
in violation of the agreement of the party accommodated, the 
holder can still recover, provided he received the note in good 
faith, and for valuable consideration. 

2. Of “Value Received.” —“ Value received ” is usually 
written, and therefore should be; but is not necessary. If not 
written, it will be presumed by the law, or may be supplied by 
the plaintiff’s proof. If expressed, it may be denied by the 
defendant, and disproved. And if a special consideration be 
stated in the note, the defendant may prove that there was no 
consideration, or that the consideration was different. If 
“ value received ” be written in a note, it means received by 
the maker from the payee; if the note be payable to the bearer, 
it means received by the maker from the holder. In a bill, 
“ value received ” means that the value was received from the 
payee by the drawer. But if the bill be payable to the drawer’s 
own order, then it means received by the acceptor from the 
drawer. 

3. What the Consideration may be. —A valuable consid¬ 
eration may be either any gain or advantage to the promisor, or 
any loss or injury sustained by the promisee at the promisor’s 
request. A previous debt, or a fluctuating balance, or a debt 
due from a third person, might be a valuable consideration. 
So is a moral consideration, if founded upon a previous legal 
consideration ; as, where one promises to pay a debt barred by 
the statute of limitations, or by infancy. But a merely moral 
consideration, as one founded upon natural love and affection, 
or the relation of parent and child, is no legal consideration. 

No consideration is sufficient in law if it be illegal in its 
nature; and it may be illegal because, first, it violates some 
positive law, as, for example, the Sunday law, or the law against 
usury. Secondly, because it violates religion or morality, as an 
agreement for future illicit cohabitation, or to let lodgings for 
purposes of prostitution, or an indecent wager; for any bill or 
note founded upon either of these would be void. Thirdly, if 
distinctly opposed to public policy ; as an agreement in restraint 
of trade, or injurious to the revenue, or in restraint of marriage, 
or for procurement of marriage, or suppressing evidence, or 
withdrawing a prosecution for felony or public misdemeanor. 


THE RIGHTS AND DUTIES OF THE HOLDER, 


179 


SECTION IV. 

THE RIGHTS AND DUTIES OF THE MAKER. 

The maker of a note or the acceptor of a bill is bound to 
pay the same at its maturity, and at any time thereafter, unless 
the action be barred by the statute of limitations, or he has 
some other defence under the general law of contracts. As 
between himself.and the payee of the note or bill, he maj 
make any defences which he could make on any debt arising 
from simple contract; as want or failure of consideration ; 
payment in whole or in part; set-off ; accord and satisfaction ; 
or the like. The peculiar characteristics of negotiable paper 
do not begin to operate, so to speak, until the paper has passed 
into the hands of third parties. Then, the party liable on the 
note or bill can make none of these defences, unless the time 
or manner in which it came into the possession of the holder 
lays him open to these defences. But the law on this subject 
may better be presented in our next section. 

SECTION V. 

THE RIGHTS AND DUTIES OF THE HOLDER OF NEGOTIABLE PAPER. 

i. What a Holder may do with a Bill or Note. —An 
indorsee has a right of action against all whose names are on the 
bill when he received it. And if one delivers a bill or note which 
he ought to indorse and does not, the holder has an action 
against him for not indorsing, or may proceed in a court of equity 
to compel him to indorse. If a bill comes back to a previous 
indorser, he may strike out the intermediate indorsements and 
sue in his own name, as indorsee; but he has, in general, no 
remedy against the intermediate parties, because, if he made 
them pay as indorsers to him, they would make him pay as 
indorser to them. If, however, the circumstances are such that 
they, if compelled to pay, would have no right against him as an 
indorser to them, as, for example, if he indorsed it “ without 
recourse,” then he may have a claim against them. 

The holder of a bill indorsed and deposited with him for 
collection, or only as a trustee, can use it only in conformity 


l8o NOTES OF HAND , BILLS OF EXCHANGE , ETC. 


with the trust. And if the indorsement express that it is to be 
collected for the indorser’s use, or use any equivalent language, 
this is notice to any one who discounts it; and the party dis¬ 
counting the paper against this notice will be obliged to deliver 
the note, or pay its contents, if collected, to the indorser. Thus, 
Mr. Sigourney, a merchant in Boston, remitted to Williams, a 
London banker, for collection, a bill of exchange indorsed by 
him, and over his name was written, “ Pay to Williams or order 
for my use.” Williams had the bill discounted for his own 
benefit by his bankers, and failed; and the English court held 
that the indorsement showed that the bill did not belong to 
Williams, and that the discounters had no right to discount it for 
him ; and they were obliged to pay the amount of it to Sigourney. 

2. Of a Transfer after Dishonor of Negotiable Paper. 
—So long as a note remains due, everybody has a right to believe 
that it has not been paid, and will be paid at maturity, and may 
purchase it in that belief. But as soon as it is overdue, the date 
shows it, and every person must know that it is either paid, and 
so extinguished, or that it has not been paid, and therefore is 
dishonored, and that there may be good reasons why it was not 
paid, or good defences against it. He therefore now takes it at 
his own peril; and therefore a holder who took the note after it 
became due is open to many of the defences which the promisor 
could have made against the party from whom the holder took 
it; because, having notice that the bill or note is dishonored, he 
ought to have ascertained whether any, and, if so, what defence 
could be set up. 

So, too, if an indorsee takes the note or bill before it is due, 
but with notice or knowledge of fraud or other good defence 
which could be made against his endorser if he sued it, it is a 
general rule that the same defence may be made against him. 

A promissory note payable on demand is considered as in¬ 
tended to be a continuing security, and therefore as not overdue, 
unless very old indeed, without some evidence of demand of 
payment and refusal. But it is not so with a check; for this 
should be presented without unreasonable delay. 

3. Of presentment for Acceptance.— It is most important 
to the holder of negotiable paper to know distinctly what his 


THE RIGHTS AND DUTIES OF THE HOLDER. jgr 

duties are in relation to presentment for acceptance or payment, 
and notice to others interested in case of non-acceptance or non¬ 
payment. 

It is always prudent for the holder of a bill to present it for 
acceptance without delay; for if it be accepted, he has new 
security; if not, the former parties are immediately liable; and 
it is but just to the drawer to give him as early an opportunity 
as may be to withdraw his funds or obtain indemnity from a 
debtor who will not honor his bills. And if a bill is payable 
at sight, or at a certain period after sight, there is not only no 
right of action against anybody until presentment, but, if this 
be delayed beyond a reasonable time, the holder loses his remedy 
against all previous parties. And although the question of 
reasonable time is generally one only of law, yet, in this con¬ 
nection, it is treated as so far a question of fact, that it is sub¬ 
mitted to the jury. There is no certain rule determining what 
is reasonable time in this respect. If a bill of exchange be 
payable on demand, it is not like a promissory note, but must 
be presented within a reasonable time, or the drawer will be 
discharged. A holder may put a bill payable after sight into 
circulation, without presenting it himself; and in that case, if a 
subsequent holder presents it, a longer delay in presentment 
would be allowed than if the first holder had kept it in his own 
possession. 

The presentment should be made during business hours; 
but in this country they extend through the day and until even¬ 
ing, except in the case of banks. Any distinct usage established 
where the presentment is made would probably be received in 
evidence, and permitted to affect the question. 

Ill health, or other actual impediment without fault, may 
excuse delay on the part of the holder; but the request of the 
drawer to the drawee not to accept does not excuse non-present¬ 
ment for acceptance. 

Presentment for acceptance should be made to the drawee 
himself, or to his agent authorized to accept. And when it is 
presented, the drawee may have a reasonable time to consider 
whether he will accept, during which time the holder is justified 
in leaving the bill with him. And this time would be as much 


x g2 NOTES OF HAND , BILLS OF EXCHANGE, ETC. 


as twenty-four hours, unless the mail goes out before. And if 
the holder gives more than twenty-four hours for this purpose, 
or the mail goes out before, he should inform the previous par¬ 
ties of it. If the drawee has changed his residence, the holder 
should use due diligence to find him; and what constitutes due 
or reasonable diligence is a question of fact for a jury. And if 
he be dead, the holder should ascertain who is his personal 
representative, if he has one, and present the bill to him. If 
the bill be drawn upon the drawee at a particular place, it is 
regarded as dishonored if the drawee has absconded, so that the 
bill cannot be presented for acceptance at that place. 

4. Of Presentment for Demand of Payment.— The next 
question relates to the duty of demanding payment; and here 
the law is much the same in respect both to notes and to bills. 

The universal rule of the law-merchant is, that the indorsers 
of negotiable paper are supposed to agree to pay it only if the 
maker or previous indorsers do not, and provided due measures 
are taken by the holder to get it paid by those who ought, in 
the first place, to pay it. Every holder of negotiable paper can 
hold it as long as he likes, and not lose his claim against the 
maker of a note, or the acceptor of a bill, unless he holds it more 
than six years, and the Statute of Limitations bars his claim. 
The reason is, that the maker or acceptor promises directly , and 
not merely to pay if another does not. But every indorser of a 
note or bill, and every drawer of a bill, only promises to pay if 
a maker or acceptor or some previous indorser does not. If 
there is a bill of exchange with six indorsers, the last promises 
in law to pay it only if the acceptor, the drawer, and the five 
previous indorsers do not pay. He has therefore a right that a 
demand according to law should be made against every one of 
these persons, and that their refusal to pay should be notified 
to him, forthwith, so that he may secure himself if he can. And 
the law-merchant is very rigorous and precise in defining what 
demand should be made by the holder, and when and how 
demand should be made on every prior party, in order to hold 
any subsequent party; and also as to what notice of the demand 
and refusal of the prior party should be given to any subsequent 
party to whom the holder looks for payment 


THE RIGHTS AND DUTIES OF THE HOLDER. jg 3 

A demand is sufficient if made at the usual residence or place 
of business of the payer, either of himself, or of an agent author 
ized to pay; and this authority may be inferred from the habit 
of paying, especially if the agent be a child, a wife, or a servant. 
The demand should not be made in the street, although a 
demand then would probably be held good, unless objected to at 
the time because made there. When a demand is made, the bill 
or note should be exhibited; and if lost, a copy should be exhib 
ited, although this is not absolutely necessary. And when a 
payer calls on the holder, and declares to him that he shall not 
pay, and desires him to give*notice to the indorsers, this consti¬ 
tutes a demand and refusal, provided this declaration be made 
at the maturity of the paper; but not if it was made before 
maturity, because the payer may change his intention. 

Bankruptcy or insolvency of the payer is no excuse for non¬ 
demand ; although the shutting up of a bank may be regarded 
as a refusal to all their creditors to pay their notes. Abscond¬ 
ing of the payer is generally a sufficient excuse; but if the payer 
has shut up his house, the holder must nevertheless inquire after 
him, and find him, if he can by proper efforts. Even in case of 
absconding, it is always better to go .through the formality of 
making a demand at the payer’s last residence or place of busi¬ 
ness ; and this is held necessary in Massachusetts. If the payer 
be dead, demand should be made at his house, unless he have 
personal representatives, and in that case, of them. And if the 
holder die, presentment should be made by his personal repre¬ 
sentatives ; that is, by his executor or administrator. 

If the drawer has no effects in the hands of the drawee, and 
has no arrangement or understanding which gives him a right 
to draw, non-presentation for payment is not a defence which he 
can make if sued on the bill. 

Impossibility of presenting a bill for payment, without the 
fault of the holder,, as the actual loss of a bill, or the like, will 
excuse some delay in making a demand for payment; but not 
more than the circumstances require. And the mere mistake 
of the holder as to the time, place, person and manner, is no 
excuse, because he has no right to make mistakes to the Hury 
of other people. 


184 MOTES OF HAND , BILLS OF EXCHANGE , ETC. 

In this country, all negotiable paper payable at a time cer 
tain is entitled to grace, which here means three days’ delay of 
payment, unless it be expressly stated and agreed that there 
shall be no grace ; and a presentment for payment before the 
last day of grace is premature, the note not being due until 
then. If the last day of grace falls on Sunday, or on a legal 
holiday, the note is due on the Saturday, or other day before the 
holiday. But if there be no grace, and the note falls due on 
a Sunday, or other holiday, it is not payable until the next day, 
At the close of the chapter we give an abstract of the laws of 
all the States concerning days of grace and holidays. 

Generally, if a bill or note be payable in or after a certain 
number of days from date, sight, or demand, in counting these 
days, the day of date, sight, or demand is excluded, and the 
day on which it falls due included. And the law would supply 
the word “from” etc., if the word were not used. Thus, a note 
dated January i, and payable in ‘‘twenty days,” would be held 
payable in twenty days (and three days’ grace) after the day of 
the date ; that is, on the 24th. If a note is made payable in one 
or more months, this means calendar months, whether shorter 
or longer. If made on the 13th of December, and payable in 
two months, it is payable on the 13th of February and grace, 
that is, on the 16th. But if so many days are named, they must 
be counted, whether they are more or less than a month. Thus, 
if the above note were payable in sixty days, it would be due on 
the nth and grace, or on the 14th of February. If dated 13th 
January, and payable in sixty days, it would be due on the 14th 
of March, with grace, or on the 17th. 

Although payment must be demanded promptly, that is, on 
the day on which it is due, it need not be done instantly; a holder 
has all the business-part of the day in which the bill or note 
falls due to make his demand in. 

Bills and notes payable on demand should be presented for 
payment within a reasonable time. If said to be “ on interest,” 
this strengthens the indication that they were intended to remain 
for a time unpaid and undemanded. But to hold indorsers, they 
should still be presented within whatever time circumstances 
may make a reasonable time ; and this is such a time as the 


THE RIGHTS AND DUTIES OF THE HOLDER . 185 

interests and safety of all concerned may require; and it may 
be a few days, or even one or two weeks. A bill or note in 
which no time of payment is expressed is held to be payable on 
demand. And evidence to prove it otherwise is inadmissible. 

The holder of a check should present it at once; for the 
drawer has a right to expect that he will; it should, therefore, 
be presented, or forwarded for presentment, in the course of the 
day following that in which it was received, or, upon failure of 
the bank, the holder will lose the remedy he would otherwise 
have had against the person from whom he receives it. If the 
drawer of the check had no funds, he is liable always. 

Every demand of payment should be made at the proper 
place, which is either the place of residence or of business of the 
payer, and within the proper hours of business. If made at a 
bank after hours of business, if the officers are there, and refuse 
payment for want of funds, the demand is sufficient. 

A note payable at a particular place should be demanded at 
that place ; and a bill drawn payable at a particular place should 
be demanded there, in order to charge the drawer of a bill, and 
the indorsers of a bill or note. But in this country an action 
may be maintained against the maker or acceptor without such 
demand ; but the defendant may discharge himself of damages 
and costs beyond the amount of the paper, by showing that he 
was ready at that place with funds. If a note is payable at any 
of several different places, presentment at any one of them will 
be sufficient. If a bill which is drawn payable generally, be 
accepted payable at a particular place, the holder may and 
should so far regard this as non-acceptance, that he should 
protest and give notice. But if this limited acceptance is 
assented to and received, it must be complied with by the holder, 
and the bill must be presented for payment at that place, or the 
drawer and indorsers are discharged. 

If payable at a banker’s, or at the house or counting-room 
of any person, and such banker or person becomes the owner at 
maturity, this is demand enough ; and if there are no funds 
deposited with him for the payment, this is refusal enough. If 
any house be designated, a presentment to any person there, or 
at the door if the house be shut up, is enough. 


86 NOTES OF HAND , BILLS OF EXCHANGE , ETC. 


If this direction be not in the body of the note, but added at 
the close, or elsewhere, as a memorandum, it is not part of the 
contract, and should not be attended to. 

If the payer has changed his residence, he should be sought 
for with due diligence ; and, if he has absconded, it is better to 
make the demand at his last place of residence or business. 

Where a bill or note is not presented for payment, or not 
presented at the time, or to the person, or in the place, or in the 
way, required by law, all parties but the acceptor or maker are 
discharged, for the reasons before stated. 

5. Of Protest and Notice.— If a bill of exchange be not 
accepted when properly presented for that purpose, or if a bill 
or note, when properly presented for payment, be not paid, the 
holder has a further duty to perform to all who are responsible 
for payment. In case of non-payment of a foreign bill, there 
should be a regular protest by a public notary ; but this is not 
strictly necessary in the case of an inland bill, or a promissory 
note, whether foreign or inland. But in practice, all bills if not 
accepted, and all bills and notes if unpaid, are protested. By a 
foreign bill is meant a bill drawn in one State or country, and 
payable in another. But notice of non-payment should be given 
to all antecedent parties, equally, and in the same way, in the 
case of both bills and notes. 

The demand and protest must be made according to the laws 
of the place where the bill is payable. It should be made by a 
notary-public, who should present the bill himself; but, if there 
be no notary-public in that place or within reasonable reach, it 
may be made by any respectable inhabitant in the presence of 
witnesses. 

.The protest should be noted on the day of demand and 
refusal; and may be filled up afterwards, even so late as at the 
trial. 

The loss of a bill is not a sufficient excuse for not protesting 
it. But a subsequent promise to pay by a drawer or indorser is 
is held to imply, or be equal to, a previous protest and notice to 
him. 

The notarial seal is, of itself, evidence of the dishonor of a 
foreign bill, but not of an inland bill. And no collateral state- 


THE RIGHTS AND DUTIES OF THE HOLDER. 187 

ment in the certificate is evidence of the fact therein stated ; 
thus the statement by a notary, that the drawee refused to 
accept or pay because he had no funds of the drawer, is no evi¬ 
dence of the absence of such funds. 

Notice must be given even to one who has knowledge. No 
particular form is necessary; it may be in writing, or oral; all 
that is absolutely essential is, that it should designate the note 
or bill with sufficient distinctness, and state that it has been 
dishonored ; and also that the party notified is looked to for pay¬ 
ment ; but it has been held that the notice to the party bound to 
pay, when given by the immediate holder of the bill, sufficiently 
implies that he is looked to. Notice of protest for non-payment 
is sufficient notice to indorsers of demand and refusal. How dis¬ 
tinctly the note or bill should be described cannot be precisely 
defined. It is enough if there be no such looseness, ambiguity, 
or misdescription as might mislead a man of ordinary intelli¬ 
gence ; and if the intention was to describe the true note, and 
the party notified was not actually misled, this would always be 
enough. 

The notice need not state for whom payment is demanded, 
nor where the note is lying; and even a misstatement in this 
respect may not be material if it do not actually mislead. 

No copy of the protest need be sent to indorsers ; but 
information of the protest should be given. 

If the letter be properly put into the post-office, any mis¬ 
carriage of the mail does not affect the party giving notice. 
The address should be sufficiently specific. Only the suiname,— 
as “ Mr. Ames,”—especially if sent to a large city, would not, 
in general, be enough. If a letter, however generally directed, 
can be shown to have reached the right person at the right 
time, it is sufficient. The postmarks are strong evidence that 
the letter was mailed at the very time these marks indicate; 
but this evidence may be rebutted, that is, contradicted. 

A notice not only may, but should, be sent by the public 
post. It may, however, be sent by a private messenger; but is 
not sufficient if it do not arrive until after the time at which it 
would have arrived by mail. It may be sent to the town where 
the party resides, or to another town, or to a more distant post- 


188 NOTES OF HAND , BILLS OF EXCHANGE , £TC 

office, if it is clear that he may thereby receive the notice 
earlier. And if the notice is sent to what the sender deems, 
after due diligence, the nearest post-office, this is enough. If 
the parties live in the same town, notice should not be sent by 
mail. 

The notice should be sent either to the place of business, or 
to the residence, of the party notified. But if one directs a 
notice to be sent to himself elsewhere than at home, it may be so 
sent, and bind not only him, but prior parties, although time is 
lost by so sending it. 

The notice of non-payment should be sent within reasonable 
time; and in respect to negotiable paper, the law-merchant 
defines this within very narrow limits. If the parties live in 
the same town, notice must be given or sent so that the party 
to whom it is sent may receive the notice in the course of the 
day next after that in which the party sending has knowledge 
of the fact. If the parties live in different places, the notice 
must be sent as soon as by the first practicable mail of the 
next day, or the next mail, if there be none on the next day. 

Each party receiving notice has a day, or until the next 
post after the day in which he receives it, before he is obliged 
to send the notice forward. Thus, if there be six indorsers, 
and the note is due on the ioth of May, in New York, and is 
then demanded and unpaid, the holder may send it by any mail 
which leaves New York on the nth of May, to the last 
indorser, wherever he lives; and that indorser may send it to 
the indorser immediately before him, by any mail on the day 
after he receives it; and so may each of the parties receiving 
notice ; and all the parties to whom notice is sent in this way 
will be held. So, too, a banker, with whom the paper is 
deposited for collection, is considered a holder, and entitled to 
a day to give notice to the depositor, who then has a day for 
his notice to antecedent parties. The different branches of 
one establishment have been held distinct holders for this 
purpose, and each to be entitled to a day. It should be sent 
by the first safe opportunity. 

Neither Sunday nor any legal holiday is to be computed in 
reckoning the time within which notice must be given. 


THE RIGHTS AND DUTIES OF THE HOLDER . 189 

There is no presumption of notice ; and the plaintiff must 
prove that it was given, and was sufficient. Thus, proving 
that it was given in “two or three days” is sufficient, if tzvo 
would have been right, but three not. 

Notice should be given only by a party to the instrument, 
who is liable upon it, and not by a stranger; and it has been 
held that notice could not be given by a first indorser, who, not 
having been notified, was not himself liable. A notice by any 
party liable will operate to the benefit of all antecedent or 
subsequent parties; that is, will hold them all to the original 
holder of the note, if the original holder gave notice properly 
to the party nearest to him. The notice may be given by any 
authorized agent of a party who could himself give notice. 

Notice must be given to every antecedent party who is to 
be held. And we have seen that this may be given by a holder 
to the first party liable, and by him to the next, &c. But the 
holder may always give notice to all antecedent parties ; and it 
is always prudent, and in this country, usual, to do so. For the 
holder loses all remedy against all those who are discharged by 
the failure of any one receiving notice to transmit it properly. 
But if a holder undertakes to notify all the antecedent parties, 
he must notify all as soon as he was obliged to notify the party 
nearest to him ; that is, the day after the dishonor of the note. 
We mean by this, that every party has a day; so that, if there 
be six indorsers, if the first indorser is notified on the seventh 
day from the dishonor, it is enough, if the holder took his day 
to notify the sixth indorser, and that indorser his day to notify 
the fifth, and so on. But the holder has nobody’s day but his 
own; and if he undertakes to notify all the parties, he must 
notify them all on the first day after the non-payment. 

Notice may be given personally to a party, or to his agent 
authorized to receive notice, or left in writing at his home or 
place of business. If the party to be notified is dead, notice 
should be given to his personal representatives. A notice 
addressed to the “legal representative of,” &c., and sent to the 
town in which the deceased party resided at his death, has 
been held sufficient. But a notice addressed to the party 
himself, when known to be dead, or to “the estate of,” &c.. 


190 NOTES OF HAND , BILLS OF EXCHANGE , ETC. 

would not be of itself sufficient, but might become so with 
evidence that the administrator or executor actually received 
the notice. 

If two or more parties are jointly liable on a bill as partners, 
notice to one is enough; but, if the indorsers are not partners, 
notice should be given to each. 

One transferring by delivery, without indorsement, a note or 
bill payable to bearer, is not generally entitled to notice of non¬ 
payment, because, generally, he is not liable to pay such paper; 
but if the circumstances of the case are such as to make him 
liable, then he must have notice, but is entitled not to the 
exact notice of an indorser, but only to such reasonable notice 
as is due to a guarantor. If, for instance, the paper was trans¬ 
ferred as security, or even in payment of a pre-existing debt, 
this debt revives if the bill or note be dishonored; and there¬ 
fore there must be notice given of the dishonor. 

In general, a guarantor of a bill or note, or debt, is not 
entitled to such strict and exact notice as an indorser is entitled 
to, but only to such notice as shall save him from actual injury; 
and he cannot make the want of notice his defence, unless he 
can show that the notice was unreasonably withheld or delayed, 
and that he has actually sustained injury from such delay or 
want of notice. If an indorser give also a bond, or his own 
note, to pay the debt, he is not discharged from his bond or 
note by want of notice. 

In general, all parties to negotiable paper, who are entitled 
to notice, are discharged by want of notice. The law presumes 
them to be injured, and does not put them to proof. 

The right to notice may be waived by any agreement to 
that effect prior to the maturity of the paper. It is quite 
common for an indorser to write, “ I waive notice,” or, “ I waive 
demand,” or some words to this effect. It should, however, be 
remembered, that these rights are independent, and one does 
not imply the other. A waiver of notice of non-payment does 
not imply a waiver of demand; therefore, if an indorser writes 
on the note, “ I waive notice,” still he will be discharged if 
there be not a due demand on the maker. And it has been 
held that a waiver of protest is a waiver of demand ,, but not of 


THE RIGHTS AND DUTIES OF THE INDORSER. I9I 

notice . So if a drawer countermands his order, the bill should 
still be presented, but notice of dishonor need not be given to 
the drawer. Or, if a drawer has no funds, and nothing equiva¬ 
lent to funds, in the drawee’s hands, and would have no remedy 
against the drawee or any one else, as the drawer cannot be 
prejudiced by want of notice, it is not necessary to give him 
notice. But the indorser must still be notified; and a drawer 
for the accommodation of the accepter is entitled to notice, 
because he might have a claim upon the acceptor. 

Actual ignorance of a party’s residence justifies the delay 
necessary to find it out, and no more; and after it is discovered, 
the notifier has the usual time. 

Death, or severe illness, of the notifier or his agent, is an 
excuse for delay; but the death, bankruptcy, or insolvency of 
the drawee of a bill is no excuse. 

As the right to notice may be waived before maturity, so 
the want of notice may be cured afterwards by an express 
promise to pay; and an acknowledgment of liability, or a pay¬ 
ment in part, is evidence, but not conclusive evidence, of 
notice; the jury may draw this conclusion from part payment, 
but are not bound to, even it the evidence be not rebutted. If 
the promise be conditional, and the condition be not complied 
with, the promise has been held to be still evidence of protest. 
Nor is it sufficient to avoid such promise, that it was made in 
ignorance of the law; but it is void if made in ignorance of the 
fact of non-notice. 

SECTION VI. 

THE RIGHTS AND DUTIES OF THE INDORSER. 

Only a note or bill payable to a payee or order is, strictly 
speaking, subject to indorsement. Those who write their names 
on the back of any note or bill are indorsers in one sense, and 
are sometimes called so; but are not meant in the law-merchant 
by the word “indorsers.” 

The payee of a negotiable bill or note—whether he be also 
maker or not—may indorse it, and afterwards any person or any 
number of persons, may indorse it. The maker promises to 
pay to the payee or his order; and the indorsement is an order 


IQ2 NOTES OF HAND , BILLS OF EXCHANGE, ETC. 

on the maker to pay the indorsee, and the maker’s promise is 
then to pay the note to him. But if the original promise was 
to the payee or order, this “or order,” which is the negotiable 
element, passes over to the indorsee, though not written in the 
indorsement, and the indorsee may indorse, and so may his 
indorsee, indefinitely. 

Each indorser, by his indorsement, does two things: first, 
he orders the antecedent parties to pay his indorsee; and next, 
he engages with his indorsee, that, if they do not pay, he will. 

If the words “to order,” or “to bearer,” are omitted acci¬ 
dentally, and by mistake, they may be afterwards inserted 
without injury to the bill or note; and whether a bill or note is 
negotiable or not, is a question of law. 

By the law-merchant, bills and notes which are payable to 
order can be effectually and fully transferred only by indorse¬ 
ment. This indorsement may be in blank , or in full. The 
writing of the name of a payee,—either the original payee or 
an indorsee,—with nothing more, is an indorsement in blank; 
and a blank indorsement makes the bill or note transferable by 
delivery, in like manner as if it had been originally payable to 
bearer. After a note has been indorsed by a payee, any person 
may write his name on the note under that of the payee, and 
be held as indorser,—because any subsequent holder may write 
over the name of the first indorser a direction to pay the note 
to the next signer, and this makes the next signer an indorsee, 
and so gives him a right to indorse; and he or any holder may 
write over his name an order to pay the holder, or anybody 
else. If the indorsement consist not only of the name, but of 
an order above the name to pay the note to some specified per¬ 
son, then it is an indorsement in full, and the note can be paid 
to no one else unless that person indorses it; nor can the 
property in it be fully transferred, except by his indorsement; 
and his indorsee may again indorse it in blank or in full. If the 
indorsement is, Pay to A B only , or in equivalent words, A B is 
indorsee, but cannot indorse it over. 

Any holder for value of a bill or note indorsed in blank, 
whether he be the first indorsee or one to whom it has come 
through many hands, may write over any name indorsed an 


THE RIGHTS AND DUTIES OF THE INDORSER. ^3 

order to pay the contents to himself; and this makes it a special 
indorsement, or an indorsement in full. This is often done for 
security; that is, to guard against the loss of the note by 
accident or theft. For the rule of law is, that negotiable paper 
transferable by delivery (whether payable to bearer or indorsed 
in blank) is, like money, the property of whoever receives it in 
good faith. The same rule has been extended in England to 
exchequer bills; to public bonds payable to bearer; and to East 
India bonds; and we think it would extend here to our railroad 
and other corporation bonds, and, perhaps, to all such instru¬ 
ments as are payable to bearer, whether sealed or not, and 
whatever they may be called. If one has such an instrument, 
and it is stolen, and the thief passes it for consideration to a 
bond fide holder, this holder acquires a legal right to it, because 
the property and possession go together. But if the bill or 
note be specially indorsed, no person can acquire any property 
in it, except by the indorsement of the special indorsee. 

It may be well to remark here, that the finder of negotiable 
paper, as of all other property, ought to make reasonable en¬ 
deavors to discover the owner, and is entitled to use the thing 
found as his own only when he has made such endeavors 
unsuccessfully. If he conceals the fact of finding, and appro¬ 
priates the thing to his own use, he is liable to the charge of 
larceny or theft. 

The written transfer of negotiable paper is called an indorse¬ 
ment, because it is almost always written on the back of the 
note; but it has its full legal effect if written on the face. 

Joint payees of a bill or note, who are not partners, must all 
join in an indorsement. 

An indorser may always prevent his own responsibility by 
writing “ without recourse,” or other equivalent words, over his 
indorsement; and any bargain between the indorser and indor¬ 
see, written or oral, that the indorser shall not be sued, is 
available by him against that indorsee; but he cannot make 
this defence against subsequent indorsees who had no notice of 
the bargain before they took the note. 

Every indorsement and acceptance admits conclusively the 
genuineness of the signature of every party who has put his 
13 


194 


NOTES OF HAND , BILLS OF EXCHANGE , ETC. 


name upon the bill previously in fact, and who is also previous 
i/i order. By this is meant, that if an indorser—say a third 
indorser—is sued, he cannot defend himself by saying that the 
names of the maker and first and second indorsers, or either of 
them, were forged, because by indorsing it himself he gives his 
indorsee a right to believe that the previous signatures were 
genuine. And an acceptor cannot say that his drawer’s name 
is forged; but he may say that an indorsement which was on 
the bill when he accepted it was forged, because an indorsement 
of a bill comes properly and in order of lazv after acceptance. 

If a holder strikes out an indorsement by mistake, he may 
restore it; if on purpose, the indorser is permanently dis¬ 
charged. 

A holder may bring his action against any prior indorser, 
either by making title through all the subsequent indorsements, 
or by filling any blank indorsement specially to himself, and 
suing accordingly; but then he invalidates all the indorsements 
which are subsequent to that which he has made special to 
himself. 

One may make a note or bill payable to his own order, and 
indorse it in blank; and this is now very common in our com¬ 
mercial cities, because the holder of such a bill or note can 
transfer it by delivery, and it needs not his indorsement to 
make it negotiable further. A note to the maker’s own order, 
if not indorsed by him, is, strictly speaking, of no force against 
him. But there is some disposition in the courts to say that a 
holder of such note may sue the maker as if the note were to 
bearer. 

A transfer by delivery, without indorsement, of a bill or 
note payable to bearer, or indorsed in blank, does not generally 
make the transferrer responsible to the transferree for the pay¬ 
ment of the instrument. Nor has the transferree a right to fall 
back, in case of non-payment, upon the transferrer for the 
original consideration of the transfer, if the bill were trans¬ 
ferred in good faith, in exchange for money or goods; for such 
transfer would be held to be a sale of the bill or note, and the 
purchaser takes it with all risk. 

An indorsement may be made on the paper before the bill 


THE RIGHTS AND DUTIES OF THE ACCEPTOR. 195 

or note is drawn; and such indorsement, says Lord Mansfield, 
“is a letter of credit for an indefinite sum, and it will not lie in 
the indorser’s mouth to say that the indorsements were not 
regular.” The same rule applies to an acceptance on blank 
paper. So an indorsement may be made after or before accept¬ 
ance, though strictly proper only after. 

A bill or note once paid at or after maturity, ceases to be 
negotiable, in reference to all who had been discharged by the 
payment. If issued again, it is like a new note without their 
names. If a bill or note is paid before it is due, it is valid in 
the hands of a subsequent bond fide indorsee, and must be paid 
to him. 

A portion of a negotiable bill or note cannot be transferred, 
so as to give the transferree a right of action for that portion in 
his own name. But if the bill or note be partly paid, it may be 
indorsed over for the balance. 

After the death of a holder of a bill or note, his executor or 
administrator may transfer it by his indorsement. The husband 
who acquires a right to a bill or a note which was given to the 
wife either before or after marriage, may indorse it. 

If the rule that the same party cannot be plaintiff and 
defendant, prevents the action, as where A, B, & Co. hold the 
note of A, C, & Co., so that if a suit were brought A would be 
one of the plaintiffs and one of the defendants also, which 
cannot be, A, B, & Co. may indorse the note to D, who may 
then sue A, C,**& Co. 

SECTION VII. 

THE RIGHTS AND DUTIES OF THE ACCEPTOR. 

Acceptance applies to bills, and not to notes. It is an 
engagement of the person on whom the bill is drawn to pay it 
according to its tenor. The usual way of entering into this 
agreement, or of accepting, is by the drawee’s writing his name 
across the face of the bill, and writing over it the word “ ac¬ 
cepted.” But any other word of equivalent meaning may be 
used, and it may be written elsewhere, and it need not be signed, 
or the drawee’s name alone on the bill may be enough; a writ¬ 
ten promise to accept a future bill, if it distinctly define and 


196 NOTES OF HAND , BILLS OF EXCHANGE, ETC . 

describe that very bill, has been held in this country as the 
equivalent of an acceptance, if the bill was taken on the credit 
of such promise. 

A banker is liable to his depositor without acceptance of his 
checks, if he refuses to pay checks drawn against funds in his 
hands. 

If a bill is accepted by a part only of those jointly responsi¬ 
ble, or joint drawees, it may be treated by the holder as dishon¬ 
ored ; but if not so treated, the parties accepting will be bound. 

An acceptance may be made after maturity, and will be 
treated as an acceptance to pay on demand. 

The acceptance may be cancelled by the holder; and if this 
cancelling be voluntary and intended, it is complete and effectual; 
but if made by mistake, by him or other parties, and this mistake 
can be shown, the acceptor is not discharged. And if the can¬ 
celling be by a third party, it is for the jury to say whether the 
holder authorized or assented to it. 

If a qualified acceptance be offered, the holder may receive 
or refuse it. If he refuses it, he may treat the bill as dishon¬ 
ored ; if he receives it, he should notify antecedent parties, and 
obtain their consent; without which they are not liable. But if 
he protests the bill as dishonored, for this reason, he cannot 
hold the acceptor upon his qualified acceptance. 

A bill drawn on one incompetent to contract, as from infancy, 
marriage, or lunacy, may be treated by the holder as dishon¬ 
ored. ** 

A bill can be accepted only by the drawee,—in person or by 
his authorized agent,—or by some one who accepts for honor. 

SECTION VIII. 

ACCEPTANCE OR PAYMENT FOR HONOR. 

If a bill be protested for non-acceptance or for non-payment, 
any person may accept it, or pay it for the honor either of the 
drawer or of any indorser. This he usually does by going with 
the bill before the notary public who protested the bill, and there 
declaring that he accepts or pays the bill for honor; and he 
should designate for whose honor he accepts or pays it, at the 
time, before the notary public, and it should be noted by him. 


ACCEPTANCE OF PA YMENT FOR HONOR. 


197 

A general acceptance supra protest (which is the phrase used 
both by merchants and in law, meaning upon or after protest ) 
for honor, is taken to be for honor of the drawer. The drawee 
himself, refusing to accept it generally, may thus accept for the 
honor of the drawer or an indorser. And after a bill is accepted 
for honor of one party, it may be accepted by another person for 
honor of another party. And an acceptance for honor may be 
made at the intervention and request of the drawee. 

No holder is obliged to receive an acceptance for honor; he 
may refuse it wholly. If he receive it, he should, at the 
maturity of the bill, present it for payment to the drawee, who 
may have been supplied with funds in the meantime. If not 
paid, the bill should be protested for non-payment, and then 
presented for payment to the acceptor for honor. 

The undertaking of the acceptor for honor is collateral only; 
being an engagement to pay if the drawee does not. It can 
only be made for some party who will certainly be liable if the 
bill be not paid; because, by an acceptance or by a payment, 
properly made, for honor, supra protest, such acceptor or payer 
acquires an actual claim against the party for whom he accepts, 
or pays, and against all parties to the bill antecedent to him, for 
all his lawful costs, payments, and damages, by reason of such 
acceptance or payment. This is an entire exception to the rule 
that no person can make himself the creditor of another with¬ 
out the request or consent of that other; but it is an exception 
established by the law-merchant. 

The reason why bills of exchange are sometimes accepted or 
paid for honor is to save the party for whose honor this is done, 
from the very heavy damages of a protested bill. 

In many of our States it is a common practice to give a 
promissory note, and include in it a confession of judgment , for 
the amount. A suit may then be brought on the note as soon 
as it is due and unpaid, and a judgment taken out at once with¬ 
out the delay of a trial; and execution may issue on the judg¬ 
ment. Sometimes by the same note the promisor waives or 
renounces the benefit or protection of all exemption laws; and 
then the execution may be satisfied from any of his property 
that the sheriff can find. 


198 NOTES OF HAND , BILLS OF EXCHANGE , ETC. 

( 68 .) 

Form of a Judgment Note with Waiver. 

$ 18 

(Time.) after date, for value received, promise to 

pay or bearer, dollars, with interest, and 

without defalcation or stay of execution. And do hereby confess 

judgment for the above sum, with interest and costs of suit, a release of all 
errors, and waiver of all rights to inquisition and appeal, and to the benefit 
of all laws exempting real or personal property from levy and sale. 

(Signature.) 

Sometimes, in addition to the above, the same note has below 
it a power of attorney, authorizing the attorney whose name is 
put into the blank left for that purpose to appear in court for 
the promisor, and confess judgment. Sometimes the power is 
given to an attorney whom the parties agree upon, and then no 
other attorney can confess the judgment. It is, however, far 
more usual, and better, to insert the name of an attorney, and 
add, as in the following form, “ or any attorney of any court of 
record.” 

Sometimes the note is followed on the same paper by a 
power to confess judgment, and a waiver of all right of exemp¬ 
tion ; both the power and the waiver extending beyond the above 
written note, and covering other notes and bonds and other 
evidence of debt. 

( 69 .) 

Judgment Note with fuller Waiver, and Power of 
Attorney. 

$ 18 

for value received, promise 

to pay to the order of the sum of dollars, with 

interest, in (time) 

(Signature) 

Know all Men by these Presents, That whereas, 
the subscriber now justly indebted to 

upon a certain promissory note, bearing even date herewith, for the sum of 
dollars, and cents, made payable to the order of 

the said and due , and may 

from time to time hereafter become further or otherwise justly indebted to 
the said upon bonds, promissory notes, due-bills, 

and other written evidences of debt, made, or to be made, indorsed or 
accepted by and held or owned by the said 

assignee or assignees hereof. 


FORMS OF JUDGMENT NOTES. . 1 gg 

Now, Therefore, in consideration of the premises, and of the sum of 
one dollar to paid by the said the receipt 

whereof is hereby acknowledged do hereby make, constitute, and 

appoint or any attorney of any court of record, to 

be true and lawful attorney, irrevocable, for and in 

name, place, and stead, to appear in and before any court of record, 
either in term-time or in vacation, in any of the States or Territories of the 
United States, at any time after the of said note 

or of any such bond, promissory note, due-bill, or other written evidence of 
debt, so already made or to be made, indorsed or accepted by 

as aforesaid, respectively, to waive service of process, and 
confess a judgment in favor of the said executors 

administrators, assignee or assignees, or the legal holder or holders of said 
note or of any one or more of such bonds, promissory notes, due-bills, ot 
other written evidences of debt, as aforesaid, for so much money as shall 
by the same appear to be due or owing thereon, with interest thereon 
according to the tenor and effect thereof respectively, together with costs ; 
also, for dollars attorney’s fees, to be added to the amount due 

or owing on entering up judgment; also, to file a cognovit for the amount 
that may be so due or owing, including attorney’s fees as aforesaid, with an 
agreement therein that no writ of error or appeal shall be prosecuted upon 
the judgment entered up by virtue hereof, nor any bill in equity filed to 
restrain or in any manner interfere with the operation of said judgment, or 
any execution issued or to be issued thereon, and to release all errors that 
may intervene in the entering-up of any such judgment or issuing any exe¬ 
cution thereon, and to consent, stipulate, and agree, that any execution 
issued or to be issued upon such judgment, may be immediately levied upon, 
and satisfied out of any personal property which may have or own, 

and to waive and relinquish all right to have 

personal property last taken and levied upon to satisfy such execution, and 
also to consent that execution may issue upon any such judgment immedi¬ 
ately. Hereby ratifying and confirming all that said attorney may do 

by virtue hereof. 

And, in consideration of the premises, do hereby stipulate, cove¬ 
nant, and agree with the said executors, administrators, 

and with the assignee, assignees, or the legal holder or holders of said note, 
or of any one or more of such bonds, promissory notes, due-bills, or other 
written evidences of debt as aforesaid, that any execution so issued or to be 
issued as aforesaid, may first be levied upon and satisfied out of any per¬ 
sonal property which may have or own, hereby expressly waiving all 

right to have personal property last taken and levied upon to satisfy 

su^h execution. 

Witness hand and seal this day of 

A. D. 18 

(Signature) (Seal.) 


In Presence of 


200 


NOTES OF HAND, BILLS OF EXCHANGE , ETC. 


( 70 ., 

Notarial Protest. 


UNITED STATES OF AMERICA. 


State of 

City (or Town) of and County of 

Be it Known that on this day of 

our Lord one thousand eight hundred and eighty 


j- ss. 

in the year of 
, at the request of 


I, Notary Public, duly commissioned and sworn, residing in the 

City (or Town) of aforesaid, did present the original (note or bill 

of exchange) hereunto annexed to 

and demanded (payment or acceptance) thereof, which was refused, stating 

Whereupon, I, the said Notary, at the request aforesaid, did Protest, 
and do hereby publicly and solemnly Protest against the Drawers and 
Endorsers of the said (note or bill ) and all others concerned, for all ex¬ 
change, re-exchange, all costs, damages, and interest, incurred or to be in¬ 
curred for want of (payment or acceptance) of the same. 

And I, the said Notary, do hereby certify, that on the same day I depos¬ 
ited in the Post Office at , Notices for the following persons : 


Thus Done and Protested, in the City (or Town) of 
aforesaid and my Notarial Seal affixed, the day and year above written. 

Notary Public. 


Notice of Protest. 


Please take notice, that a (note made by, or bill of exchange drawn by 
on ) for dollars, dated 188 , payable 

and endorsed by you, is duly protested for non-payment (or accept¬ 
ance), payment (or acceptance) having been demanded and refused, and the 
holders look to you for the payment thereof. 

Respectfully, 


To 


Notary Public. 




ABSTRACT OF DAYS OF GRACE AND HOLIDAYS. 


201 


ABSTRACT OF THE DAYS OF GRACE AND HOLIDAYS 
IN ALL THE STATES AND TERRITORIES. 

ALABAMA. — All negotiable instruments are governed by the commer¬ 
cial law. There is no special legislation on the subject. Sundays, January 
ist, July 4th, and December 25th, are holidays, and all paper entitled to grace 
is due and payable on the day preceding. 

ARIZONA. —Grace allowed except on sight drafts. January ist, Feb¬ 
ruary 22d, July 4th, December 25th, Sundays, thanksgiving, fast, and election 
days are holidays, and are to be included in counting the days of grace. 
When any other holiday falls on Sunday, the following day is treated as a 
legal holiday. Notes, checks, etc., without grace, payable on a holiday, are 
due and collectible on the day following. 

ARKANSAS. — Negotiable instruments are governed by the rules of 
commercial law. Sundays, December 25th, and July 4th are legal holidays, 
and all paper falling due on either of said days and entitled to grace, is pay¬ 
able on the preceding day. 

CALIFORNIA. — Days of grace are not allowed; but all contracts to be 
performed on a holiday may be performed on the next day. Sundays, 
January 1st, February 22d, May 30th, July 4th, Christmas, general election 
days, and all days appointed by the Governor or President as days of public 
fast, thanksgiving or holiday, are legal holidays. When any other holiday 
falls on Sunday, the Monday following is treated as a holiday. 

COLORADO. — Days of grace are allowed on all bills and notes, except 
drafts payable at sight. Sundays, January ist, February 22d, May 30th, 
July 4th, December 25th, and thanksgiving and fast days are holidays, and 
bills and notes due on either or any of said days are payable on the preced¬ 
ing day. When any other holiday falls on Sunday, the Monday following is 
treated as a holiday. 

CONNECTICUT. — Grace is allowed by common law on all negotiable 
instruments, except promissory notes, bills of exchange, or orders payable 
at sight or on demand. And excepting, also, any bank check unless 
expressly provided for therein. When the third day falls on any day appointed 
by the governor as a day of public thanksgiving or fasting, or on Sundays, 
January ist, February 22d, July 4th, or Christmas, such bill or note is due on 
the next preceding secular day. The thirtieth day of May is a legal holiday, 
and bills and notes due on the same are not payable until the next following 
business day. 


202 ABSTRACT OF DA YS OF GRACE AA T D HOLIDA VS. 


DAKOTA. — Days of grace are allowed on all bills, drafts, and notes. 
Sundays and holidays are excluded. January ist, February 22d, July 4th, 
December 25th, general election days, days appointed by the President or 
Governor as days of thanksgiving or fast or holiday, are public holidays, and 
paper due on any of them is payable on the next following business day. 
When any other holiday falls on Sunday, the Monday following is a holiday. 

DELAWARE. — Days of grace are allowed on all checks, notes, drafts, 
or bills payable at a time future, or different from that on which they are 
dated. They are not allowed on checks, notes, drafts, or bills payable with¬ 
out time or at sight. Sundays, December 25th, July 4th, and any day 
appointed for thanksgiving are public holidays, and negotiable instruments 
due on the same day are payable on the next preceding secular day. 

DISTRICT OF COLUMBIA—There are no statute provisions as to 
days of grace. Sundays, January ist, February 22d, July 4th, December 25th, 
thanksgiving, and fast days are public holidays, and notes falling due thereon 
are deemed to have matured on the day previous. When any other holiday 
falls on Sunday, the following day is a holiday. 

FLORIDA.—There has been no special legislation on the subject of 
grace; the rules of commercial law prevail. Sundays, January ist, February 
22d, July 4th, December 25th, general election days, and days of public 
thanksgiving, fasting, and prayer are public holidays, and notes falling due 
on such days must be presented on the secular day next preceding. When 
any other holiday falls on Sunday, the following Monday is a holiday. 

GEORGIA. — Grace is allowed on all negotiable paper except bills and 
drafts payable at sight. Bills, notes, and checks payable on a holiday are 
due and payable on the secular day next following such holiday, except 
when such holiday falls on Sunday, when Monday is a holiday, and notes, 
etc., maturing on Sunday must be presented on Saturday, and those matur¬ 
ing on Monday must be presented on the Tuesday following. Sundays, 
January 1st, February 22d, July 4th, December 25th, and days of public 
thanksgiving or fast are holidays. 

IDAHO. —Grace allowed except on sight drafts. Sundays, January ist, 
July 4th, and December 25th are holidays, and are included in counting the 
days of grace. 

ILLINOIS. — Days of grace are not allowed on promissory notes, checks, 
drafts, bills of exchange, orders, or other negotiable or commercial instru¬ 
ments payable at sight, or on demand, or on presentment. Holidays are 
Sundays, January ist, February 22d, May 30th, July 4th, December 25th, 
any day appointed by the Governor or President as a day of fast or thanks¬ 
giving; and paper falling due on any of said days is payable on the next pre¬ 
ceding secular day. 

INDIANA. — Grace is allowed on all negotiable instruments. Sundays, 
January ist, July 4th, Christmas day, and any day appointed or recommended 


ABSTRACT OF DA YS OF GRACE AND HOLIDA YS. 203 

by the Governor of the State, or President of the United States as a day of 
public fast or thanksgiving, are holidays, and all negotiable paper falling due 
on either of said days is payable on the day next preceding. 

IOWA. — Days of grace are allowed on all bills and notes, and demand 
at any time during the days of grace is sufficient. Holidays are Sundays, 
New Year’s day, May 30th, the fourth of July, Christmas-day, and any day 
appointed by the Governor or President as a day of fast or thanksgiving, and 
notes and bills due on any of said days are payable on the preceding day. 

KANSAS. —Days of grace are allowed on all bonds, notes, and bills of 
exchange. Sundays, the fourth of July, Christmas, New Year’s day, and 
Thanksgiving and fast day are holidays; and the next preceding business 
day is deemed the last day of grace, when the third day falls on any of such 
days. 

KENTUCKY. —Grace is allowed on all bills of exchange and promis¬ 
sory notes which are placed on the same footing as bills of exchange. Sun¬ 
days, New Year’s day, the 22d of February, fourth of July, Christmas day,— 
all days appointed by the President or Governor as days of thanksgiving or 
fasting, are holidays. When any of said days occur on Sunday, the follow¬ 
ing day is to be observed, and bills and notes falling due on the same are 
payable on the Saturday previous. 

LOUISIANA. Days of grace are allowed, except on bills of exchange 
at sight, or drafts, or orders for money payable on .demand. January 1st, 
January 8th, February 22d, Mardi Gras, Match 4th in New Orleans, July 4th, 
Christmas-day, Sunday, and Good Friday are holidays, and promissory notes 
and bills of exchange falling due on the same are payable on the business 
day next preceding. 

MAINE. — Grace is allowed on all negotiable paper, except notes due 
on demand. Sundays, public fasts or thanksgiving, fourth of July, February 
22d, May 30th, Christmas, and New Year’s day, are holidays and negotiable 
instruments falling due on the same are payable on the preceding day. If 
July 4th, May 30th, February 22d, December 25th, or January 1st fall on 
Monday, and is the third day of grace, or on Saturday and the following Sun¬ 
day is the third day ,four days are allowed. 

MARYLAND. — There are no special provisions on the subject of days 
of grace. The commercial law prevails. Sundays, Christmas-day, New 
Year’s day, fourth of July, twenty-second of February, and days of public 
thanksgiving or of humiliation and prayer, are public holidays, and negoti¬ 
able paper falling due on any of said days is payable on the secular day 
next preceding. Whenever any other holiday falls on Sunday, notes falling 
due the following Monday are payable on the Saturday preceding, and notice 
of dishonor is sent on Tuesday. 

MASSACHUSETTS.— Grace is allowed on all bills payable at sight, or at 
a future day certain, and on promissory negotiable notes, orders, and drafts, 
payable at a future day certain, in which there is not an express stipulation 


ABSTRACT OF BA VS OF GRACE AND HO LI DA VS. 


204 

to the contrary; but is not allowed on any bill, note, or draft, payable on 
demand. Bills, drafts, notes, due and payable on Sunday, Thanksgiving, 
Fast, Christmas-day, the thirtieth of May, the twenty-second of February, 
and Fourth of July, or on the following day, when either of the two last- 
mentioned days fall on Sunday, shall be payable on the business day next 
preceding. 

MICHIGAN.— Days of grace are allowed on all bills of exchange payable 
at sight or at a future day certain; on promissory notes, orders, and drafts, 
payable at a future day certain; but not allowed on any bill, note, or draft, 
payable on demand. Bills and notes maturing on Sunday or a legal holiday, 
are payable on the day preceding. Holidays are New Year’s day, February 
22d, May 30th, July 4th, Christmas, and any day appointed by the Governor 
or President as a day of fasting or thanksgiving. When any holiday falls 
on Sunday the day following is a holiday. 

MINNESOTA.— Grace is allowed on all negotiable instruments except 
bills, notes, and drafts, payable on demand. Bills, notes, and drafts, payable 
on Sunday, Thanksgiving, Good Friday, Christmas, New Year’s day, Feb¬ 
ruary 22d, and July 4th, are payable on the business day next preceding. 

MISSISSIPPI.— There are no statute provisions on the subject of days 
of grace. The rules of commercial law prevail. Notes, etc., falling due on 
Sunday, New Year’s day, the Fourth of July, or Christmas-day, are payable 
on the secular day next preceding. 

MISSOURI.— Grace is allowed except on sight drafts. Sundays, New 
Year’s day, the twenty-second of February, Fourth of July, Christmas-day, 
state and national thanksgiving days, and the day of the general state elec¬ 
tion, are public holidays, and negotiable instruments due thereon are payable 
on the succeeding day, unless such succeeding day be a holiday, and then on 
the day previous. 

MONTANA.— Grace allowed except on sight drafts. Bills and notes 
falling due on Sunday, July 4th, December 25th, Fast or Thanksgiving days, 
are payable on the day previous. 

NEBRASKA.— Days of grace are allowed on all negotiable paper. 
Holidays falling on Sunday are to be observed on Monday, and negotiable 
instruments falling due on Monday, when a holiday, are payable on the next 
day. Holidays are January 1st, February 22d, April 22d, May 30th, July 
4th, December 25th, and Thanksgiving and Fast days. 

NEVADA.— Days of grace are allowed on all negotiable paper except 
bills of exchange and drafts payable at sight. Paper falling due on a holi¬ 
day is payable on the day preceding. Holidays are Sundays, January 1st, 
February 22d, July 4th, Thanksgiving and Christmas-days. 

NEW HAMPSHIRE.— Grace is allowed on all bills, drafts, orders, and 
negotiable promissory notes, unless the same are on demand, or grace is 
expressly excluded in the instrument. Negotiable paper due on the follow- 


ABSTRA CT OF DA YS OF GRACE AND HO LIDA YS. 2 0$ 

ing holidays: Sunday, Thanksgiving, Fast, Christmas, Fourth of July, the 
twenty-second of February, May thirtieth, or on the following day, when 
either of the last two days fall on Sunday, is due and payable on the busi¬ 
ness day next preceding. 

NEW JERSEY. — Grace is allowed on all checks, bills of exchange, or 
drafts, except those drawn on banks or banking associations, whether the 
same are at sight, or payable on any specified day, or within any specified 
day. Bills of exchange or promissory notes falling due on Christmas, 
New Year’s day, May 30th, February 22d, July 4th, general election days, 
and any day appointed by the Governor as a day of public thanksgiving or 
fasting, are payable on the next preceding secular day, unless such holiday 
falls on Sunday or Monday, when they are payable on the Tuesday follow 
ing. Holidays falling on Sunday are observed on Monday. 

NEW MEXICO. — No grace is allowed. Notes, etc., falling due on Sun¬ 
day, or a holiday, are payable on the next succeeding business day. January 
1st, July 4th, December 25th, Thanksgiving, and Fast days are legal holidays. 

NEW YORK. — Grace is allowed on all negotiable paper except bills pay¬ 
able at sight, and checks, bills, or drafts, appearing on their face to be drawn 
on any bank, banking association, or banker, which are payable on any speci¬ 
fied day, or in any specified number of days. Negotiable paper due and 
payable on Sundays, New Year’s day, February 22d, May 30th, July 4th, 
Christmas, any general election day, and any day appointed by the Governor 
or President as a day of thanksgiving or fasting, must be paid on the day 
preceding. Holidays falling on Sunday are observed on Monday. 

NORTH CAROLINA. — Grace is allowed except on notes and drafts pay¬ 
able on demand. January 1st, February 22d, May 10th, May 30th, July 4th, 
December 25th, and Thanksgiving day are public holidays, and notes, etc., 
falling dueithere are payable on the day previous. Holidays falling on Sun¬ 
day are observed on Monday, and notes, etc., due on such Sunday are paya¬ 
ble on the Saturday preceding, and those otherwise payable on Monday on 
the Tuesday following. When a holiday falls on Saturday, notes, etc., due 
on the Sunday following, are payable on Monday. When it falls on Mon¬ 
day, those otherwise payable on that day are payable on Tuesday. 

OHIO. — Grace is allowed except on checks, bills, and drafts, drawn on a 
banker or broker, and payable on a specific day or a certain number of days 
after date or sight. January 1st, February 22d, May 30th, July 4th, Decem¬ 
ber 25th, Fast and Thanksgiving days, are legal holidays. Notes, etc., fall¬ 
ing due thereon are payable on the preceding secular day. Holidays falling 
on Sunday are observed on Monday. 

OREGON. — Grace is allowed on all negotiable notes, etc., except bills, 
notes, and drafts, payable on demand. Sundays, January 1st, February 22d, 
May 30th, July 4th, December 25th, days of general election, Fast and 
Thanksgiving are holidays. Notes, etc., payable on a holiday are due on the 
next business day. 


206 ABSTRACT OF DA YS OF GRACE AND H OLID A VS. 


PENNSYLVANIA. — Grace is not allowed on drafts and bills of ex¬ 
change payable at sight. Sundays, Christmas, New Year’s day, Washing¬ 
ton’s birthday, Good Friday, July 4th, and any day fixed by law or by the 
Governor as a holiday, are public holidays, and negotiable paper due on any 
of said days is payable on the next preceding secular day. 

RHODE ISLAND. — Grace is allowed on notes and bills of exchange. 
Sundays, July 4th, Christmas day, and February 22d, or, when either of said 
days fall on Sunday, the day following it; May 30th, or when it falls on 
Sunday, the day previous; days of Thanksgiving or Fast are holidays, and 
payment of all notes, checks, and bills, due and payable on such holidays is 
to be made on the secular day next preceding. 

SOUTH CAROLINA. — Days of grace are allowed on all bills and notes, 
whether at sight or otherwise. Days of national thanksgiving, general 
election, January 1st, February 22d, July 4th, and December 25th, are holi¬ 
days. 

TENNESSEE. — Grace is not allowed on bills of exchange payable at 
sight. Sundays, New Year’s day, Fourth of July, Christmas, and any day 
appointed by the President or Governor as a day of Fast or Thanksgiving, 
are holidays, and negotiable paper due on such days is payable on the pre¬ 
ceding secular day. 

TEXAS. — Grace is allowed on all negotiable notes and bills. January 
1st, February 22d, March 2d, April 21st, July 4th, December 25th, general 
election days, and days of public fasting or thanksgiving are holidays. If a 
holiday occurs on Sunday the next day is observed as a holiday. 

UTAH. — Grace is not allowed on bills of exchange. January 1st, Feb¬ 
ruary 22d, May 30th, July 4th, July 24th, December 25th, Fast and Thanks¬ 
giving days are holidays. Holidays falling on Sunday are observed on 
Monday. Notes, etc., falling due on Sunday must be presented on the day 
preceding, except when Sunday and a legal holiday come together, and 
then on the day following. 

VERMONT. — Days of grace are allowed on all negotiable paper except 
bills, drafts, and promissory notes, payable on demand or at sight. Bills 
and notes payable at sight or on demand, falling due on Sunday, are payable 
on the Monday following. New Year’s day, May 30th, July 4th, December 
25th, and any day appointed by the Governor or President as a day of fast 
or thanksgiving shall be treated as Sunday. 

VIRGINIA. — Grace is allowed, except on sight drafts. Christmas, Janu¬ 
ary 1st, February 22d, and July 4th, are holidays, days of public fast or 
thanksgiving, and bills and other negotiable paper are due on the next suc¬ 
ceeding secular day. When any holiday falls on Sunday the Monday follow¬ 
ing is observed as a holiday, and notes, etc., due on either day must be 
presented on Tuesday. 


ABSTRACT OF DA VS OF GRACE AND H OLID A YS. 207 

WASHINGTON TERRITORY.— Grace allowed on all negotiable notes, 
etc. Sundays, July 4th, and December 25th are holidays. When the last 
day of grace falls on a holiday, notes, etc., are payable on the following day. 

WEST VIRGINIA.—There are no provisions in regard to days of grace. 
Negotiable paper due on Sunday, Christmas, New Year’s day, July 4th, and 
days of national thanksgiving, is payable on the preceding business day. 
Holidays falling on Sunday are observed on Monday. 

WISCONSIN.— Grace is allowed, unless there is an express stipulation 
to the contrary, on all negotiable paper except bills, notes, and drafts, paya¬ 
ble on demand. Negotiable paper falling due on Sunday, July 4th, Decem¬ 
ber 25th, January 1st, February 22d, Thanksgiving day, is payable on the 
secular day next preceding. Holidays falling on Sunday are observed on 
Monday, and papers maturing on either day are payable on the preceding 
secular day. 

WYOMING.— The rules of commercial law prevail. January 1st, Feb¬ 
ruary 22d, July 4th, December 25th, and the annual thanksgiving day are 
holidays. 


CHAPTER XVII. 

AGENCY. 


SECTION I. 

AGENCY IN GENERAL. 

The relation of principal and agent implies that the princi¬ 
pal acts by and through the agent, so that the acts in fact of 
the agent are the acts in law of the principal; and only when 
one is authorized by another to act for him in this way, and to 
this extent, is he an agent. One who is disqualified from con¬ 
tracting on his own account may act as the agent of another; 
thus infants, married women, and aliens may act as agents for 
others. 

A principal is responsible for the acts of his agent, not only 
when he has actually given full authority to the agent thus to 




208 


AGENCY. 


represent and act for him, but when he has, by his words, or 
his acts, or both, caused or permitted the person with whom the 
the agent deals to believe him to be clothed with this authority. 
And a man may be thus held as a principal, either because he 
has in some way authorized all persons to believe that he has 
constituted some other man his agent, or because he has author¬ 
ized only the party dealing with the supposed agent to so believe. 
For all responsibility rests upon two grounds, which are com¬ 
monly united, but either of which alone is sufficient; one, the 
giving of actual authority; the other, such appearing to give 
authority as justifies those who deal with the supposed agent in 
believing that this authority was given him. 

A general agent is one authorized to represent his principal 
in all his business, or in all his business of a particular kind. 
A particular agent is one authorized to do only a specific thing 
or a few specified things. It is not always easy to discriminate 
between these; but it is often important, by reason of the rule 
that the authority of the general agent is measured by the 
usual scope and character of the business he is empowered to 
transact. By appointing him to do that business, the principal 
is considered as saying to the world that his agent has all the 
authority necessary to the doing of it in the usual way. And 
if the agent transcends his actual authority, but does not go 
beyond the natural and usual scope of the business, the princi¬ 
pal is bound, unless the party with whom the general agent 
dealt knew that the agent exceeded his authority For if an 
agent does only what is natural and usual in transacting busi¬ 
ness for his principal, and yet goes beyond the limits prescribed 
by him, it is obvious that the principal must have put particular 
and unusual limitations to his authority; and these cannot 
affect the rights of a third party who deals with the agent in 
ignorance of these limitations. But, on the other hand, the 
rule is, that, if an agent who is specially authorized to do a spe¬ 
cific thing exceeds his authority, the principal is not bound, 
because the party dealing with such agent must inquire for him¬ 
self, and at his own peril, into the extent and limits of the 
authority given to the agent. Here, however, as before, if the 
party dealing with the agent, and inquiring, as he should, into 


HOW AUTHORITY MA Y BE GIVEN TO AN AGENT 2 og 

his authority, has sufficient evidence of this authority furnished 
to him by the principal, and, in his dealings with the agent, acts 
within the limits of the authority thus proved, he cannot be 
affected by any reservations and limitations made secretly by 
the principal, and wholly unknown to the person dealing with 
the agent. 

SECTION II. 

HOW AUTHORITY MAY BE GIVEN TO AN AGENT. 

It may be given under seal, or in writing without seal, or 
orally. If given by a written, instrument, this instrument is 
called a Power of Attorney, of which we shall give various 
forms at the close of this chapter. An oral appointment author¬ 
izes the agent to make a written contract, but not to execute 
instruments under seal. But an instrument under seal, signed 
and sealed in the principal’s presence, and by his request and 
authority, will be regarded as the principal’s deed, made by him¬ 
self. One employed by another to act for him in the usual 
trade or business of the agent, as auctioneer, broker, or the like, 
acquires thereby authority to do all that is necessary or usual 
in that business. And if a person puts his goods into the cus¬ 
tody of another whose ordinary and usual business it is to sell 
such goods, he authorizes the whole world to believe that this 
person has them for sale, and any person buying them honestly, 
in this belief, would hold them. 

Therefore, if fraudulent by-bidding be procured or permitted 
by the auctioneer, even without the knowledge of the owner of 
the goods, the owner is answerable for this fraud of his agent, 
and the buyer has a right to refuse to take the goods. So 
neither party is bound until the agreement of sale is completed. 
Therefore the auctioneer may withdraw any article, and a bidder 
may withdraw any bid, until the article is “ knocked down,” 
but not afterwards ; for then the sale is completed, and the 
property in (or ownership of) the article passes to the buyer. 

If one is repeatedly employed to do certain things,—as a 
wife or a son to sign bills or receipts; or domestic servant to 
make purchases; or a merchant or broker to sign policies, and 
the like,—in all these cases, one dealing with the person thus 
14 


210 


AGENCY. 


usually employed, is justified in believing him authorized to do 
those things with the assent and approbation of his employer, 
and in the same way in which he has done them, but not in any 
other way. Thus, if a servant is usually employed to buy, but 
always for cash, this implies no authority to buy on credit. 

An agency may be confirmed and established, and in fact 
created, by a subsequent adoption and ratification; and a rati¬ 
fication relates back to the original transaction ; and a corpora¬ 
tion is bound by the ratification of an agent’s acts, in the same 
manner as an individual would be. But no ratification is effec¬ 
tual to bind the principal, unless made by the principal with a 
knowledge of all the material facts. And there can be ratifica¬ 
tion only where the act is done by one purporting to be an agent, 
or by an assumed authority. Generally, one who receives and 
holds a beneficial result of the act of another as his agent, is 
not permitted to deny such agency ; and in some cases this is 
extended even to acts of such agent under seal. 

Thus, if an agent sell under seal property of a supposed 
principal, an individual or a corporation, and receive payment, 
and hand this over to the principal, if the principal could show 
that the agent had no authority, he might avoid the sale, and 
recover the property ; but he could not do this and also hold the 
money paid for it. And if one, knowing that another has acted 
as his agent, does not disavow the authority as soon as he con¬ 
veniently can, but lies by and permits a person to go on and deal 
with the supposed agent, or to lose an opportunity of indemni¬ 
fying himself, this is an adoption and confirmation of the acts of 
the agent. Nor can a supposed principal adopt a part for his 
own benefit, and repudiate the rest of the supposed agency ; he 
must adopt the whole or none. 

If an agent makes a sale, and his principal ratifies the sale, 
he thereby ratifies the agent’s representations made at the time 
of the sale and in relation to it, and is bound by them. 

The whole subject of mercantile agency is influenced and 
governed by mercantile usage. Thus, as to the difference 
between factors and brokers, the law adopts a distinction usual 
among merchants, although it may not always be regarded by 
them. A factor is a mercantile agent for sales and purchases, 


HOW A UTHORITY MA Y BE GIVEN TO AN AGENT. 2 11 

who has possession of the goods ; a broker is such agent, but 
without possession of the goods. Hence, a factor may act for 
his principal, and yet in his own name, because the actual 
owner, by delivering to him the goods, gives to him the appear¬ 
ance of an owner; but a broker must act only in the name of 
his principal. 

A purchaser of goods from a factor may set off against the 
price a debt due from the factor, unless he buys the goods know¬ 
ing that they are another’s ; not so, if the purchaser buy from a 
broker. Again, a factor has a lien on the goods for his claims 
against his principal; but a broker generally has not. 

One may be a factor as to all rights and duties, who is called 
a broker; as an exchange-broker, who has notes for sale on dis¬ 
count, certificates of stock, etc., delivered into his possession ; 
and such broker, being actually a factor, would have a lien on 
the policies of insurance or other documents held by him, for 
his commissions and charges about those documents. 

A cashier of a bank, or other official person, may be an agent 
for those whose officer he is, or for others who employ him. He 
has, without special gift, all the authority necessary or usual to 
the transaction of his business. But he cannot bind his employ¬ 
ers by any unusual or illegal contract made with their customers. 
The same law, and the same qualifications, apply to the case of 
officers of railroad companies, or other corporations. Their acts 
bind their employers or companies, so far as they have authorized 
those acts, or have justified those who dealt with the officers in 
believing that the officers possessed such authority but no 
further. 

Nor would the acts or permissions of such officer have any 
validity if they violate his official duties, and are certainly and 
obviously beyond his power, even if sanctioned by his directors ; 
as if the cashier of a bank permitted overdrawing, or the like. 
And all parties who deal with such agent in such a transaction 
would be unable to hold the principal; for the law would con¬ 
sider them as knowing that the officer could have no right to 
do such things. 

Therefore, the general agent of a corporation, clothed with a 
certain power by the charter or the lawful acts of the corpora- 


212 


AGENCY. 


tion, may use that power for an authorized, or even a prohibited 
purpose, in his dealings with an innocent third party, and render 
the corporation liable for his acts, if they be really within the 
power given him, or seem to be within it by the fault or act of 
the corporation ; but not otherwise. Thus, a treasurer of a cor¬ 
poration has no power to release a claim which belongs to the 
corporation. 

SECTION III. 

EXTENT AND DURATION OF AUTHORITY. 

A general authority may continue to bind a principal after 
its actual revocation, if the agency were known, and the revoca¬ 
tion be wholly unknown to the party dealing with the agent, 
without that party’s fault. 

An authority to sell implies an authority to sell on credit, if 
that be usual; otherwise not; and if an agent sells on credit 
without any authority, or by exceeding his authority, the princi¬ 
pal may claim his goods from the purchaser, or hold the agent 
responsible for their price. Neither an auctioneer, nor a broker 
employed to sell, has any right to sell on credit, unless this 
authority is given him expressly, or by some known and estab¬ 
lished usage. And the agent is generally responsible if he 
mixes the goods of his principal with his own, in such a manner 
as to confuse them together, or takes a note payable to himself, 
unless this be authorized by the usage of the trade. 

If the agent (or factor) takes a note payable to himself, and 
becomes bankrupt, such note belongs to his principal, and not 
to the agent’s assignees. 

A power to sell gives a power to warrant, where there is a 
distinct usage of making such sales with warranty, and the want 
of authority to warrant is unknown to the purchaser, without his 
fault; and not otherwise. Thus, it has been held that an author¬ 
ity to sell a horse implies an authority to sell with warranty, 
because horses are usually sold with warranty. A general 
authority to sell goods carries with it an authority to sell by 
sample. General authority to transact business, or even to 
receive and discharge debts, does not enable an agent to accept 
or indorse bills or notes, so as to charge his principal. Indeed, 


EXTENT AND DURATION OF AUTHORITY. 


213 

special authorities to indorse are construed strictly. But this 
authority may be implied from the previous usage of the agent, 
recognized and sanctioned by the principal. Where a confi¬ 
dential clerk was accustomed to draw bills for his employer, and 
this employer had authorized him in one instance to indorse, 
and on two other occasions had received money obtained by his 
indorsement of his employer’s name, the court held that a jury 
might consider the clerk authorized generally to indorse for his 
employer. An agent to receive cash has no authority to take 
bills or notes, except bank-notes. 

If an agent sells and makes a material representation which 
he believes to be true, and the principal knows it to be false, 
and does not correct it, this is the fraud of the principal, and 
avoids the sale. 

If an agency be justly implied from general employment, it 
may continue so far as to bind the principal after his withdrawal 
of the authority, if that withdrawal be not made known, in such 
way as is usual or proper, to all who deal with the agent as 
such. 

Revocation, generally, is always in the power and at the will 
of the principal. His death operates of itself a revocation. But 
the death of an agent does not revoke the authority of a sub¬ 
agent appointed by the agent under an authority given him by 
the principal. If the power be coupled with an interest,—as 
where one gives a person power to sell goods and apply the 
money for his own benefit, or the like,—or if it is given for 
a valuable consideration, and the continuance of the power is 
requisite to make the interest available, then it cannot be revoked 
at the pleasure of the principal. Marriage of a woman revokes 
a revokable authority given by her while single. 

If an agent to whom commercial paper is given for collection 
be negligent or mistaken about it, and so in fault towards his 
principal, the measure of his responsibility is the damage actually 
sustained by his principal. 

If a bank receive notes or bills for collection, although charg¬ 
ing no commission, the possible use of the money is consideration 
enough to make them liable as agents having compensation ; 
that is, liable for any want of due and legal diligence and care. 


214 


AGENCY. 


But if the bank exercise proper skill and care in the choice of 
a collecting agent, or of a notary, or other person or officer, 
to do what may be necessary in relation to the paper committed 
to them, the bank is not liable for his want of care or skill. 

In general, an exigency, or even necessity, which would 
make an extension of the power of an agent very useful to his 
employer, will not give that extension. A master of a ship, 
however, may sell it, in case of necessity, or pledge it by bot¬ 
tomry, to raise money. But this is a peculiar effect of the law- 
merchant, to be considered more fully in the chapter on the 
Law of Shipping; and no such general rule applies to ordinary 
agencies. 

SECTION IV. 

THE EXECUTION OF AUTHORITY. 

Generally, an authority must be conformed to with great 
strictness and accuracy ; otherwise, the principal will not be 
bound, although the agent may be bound personally. But the 
old strictness is now abated considerably ; and, whatever be the 
form or manner of the signature of a simple contract, it will be 
held to bind the principal, if that were the certain and obvious 
intent. In the case of sealed instruments, the ancient severity 
is more strictly maintained. 

That the authority must be conformed to with strict accuracy, 
in all matters of substance, is quite certain; but the whole 
instrument will be considered, in order to ascertain the inten¬ 
tion of the parties and the extent of authority. A power given 
to two cannot be executed by one; but some exception to the 
rule as to joint power exists in the case of public agencies, and also 
in many commercial transactions. Thus, either of two factors— 
whether partners or not—may sell goods consigned to both. 
And where there are joint agents, whether partners or not, 
notice to one is notice to both. 

In commercial matters, usage, or the reason of the thing, 
may sometimes seem to add to an authority; so far, at least, as 
is requisite for the full discharge of the duty committed to the 
agent in the best and most complete manner. Thus, it is held 
that an agent to get a bill discounted may indorse it in the name 


RIGHTS OF ACTION GROWING OUT OF AGENCY. 215 

of his principal, unless he is expressly forbidden to indorse. So 
a broker, employed to procure insurance, may adjust a loss under 
the same; but he cannot give up any advantages, rights, or 
securities of the assured, by compromise or otherwise, without 
special authority. 

SECTION V. 

LIABILITY OF AN AGENT. 

Generally, an agent makes himself liable by his express 
agreement, or by transcending his authority, or by a material 
departure from it, or by concealing his character as agent, or by 
such conduct as renders his principal irresponsible, or by his 
own bad faith. If he describes himself as agent for some 
unnamed principal, he is not liable, unless he is proved to be 
the real principal. If an agent execute an instrument the lan¬ 
guage of which would hold him personally, he cannot exonerate 
himself by showing that in fact he signed it as agent, and that 
this was known to the other party. Because this would be to 
vary the terms of a written contract by evidence, which is not 
permitted, as we have before stated. 

A party with whom an agent deals as agent cannot hold him 
personally, on the ground that he transcended or departed from 
his authority, if that party knew at the time that the agent did 
so. If he exceeds his authority, he is liable on the whole con¬ 
tract, although a part of it is within his authority. One who, 
having no authority, acts as agent, is personally responsible. 
But if an agent transcends his authority through an ignorance 
of its limits, which is actual and honest, and is not imputable to 
his own neglect of the means of knowledge, he would not be 
held, unless an innocent party dealing with him as agent would 
otherwise suffer loss. 

SECTION VI. 

RIGHTS OF ACTION GROWING OUT OF AGENCY. 

If an agent intrusted with goods sell the same without 
authority, the principal may affirm the sale, and sue the buyer 
for the price, or he may disaffirm the sale, and recover the goods 
from the buyer. 


216 


AGENCY. 


In case of a simple contract, that is, a contract not under 
seal, an undisclosed principal may show that the nominal party 
was actually his agent, and thus make himself actually a party 
to the contract, and sue upon it; but if the other party has pre< 
viously in good faith settled with the supposed agent, or paid 
him anything, in cash or by charge, or in account, this othet 
party must not lose by the coming forward of the principal. So, 
too, an undisclosed principal, when discovered, may be made 
liable on such contract; but would be protected, if his accounts 
or relations with his agent had been in the meantime changed in 
good faith, so as to make it detrimental to him to be held liable. 
If one sells to an agent, knowing him to be an agent, and know¬ 
ing who is his principal, and elects to charge the goods to the 
agent alone, he cannot afterwards transfer the charge to the 
principal. 

Notice to an agent, before the transaction goes so far as to 
render the notice useless, is notice to the principal. And knowl¬ 
edge obtained by an agent in the course of the transaction itself 
is the same thing as knowledge of the principal. Notice to an 
officer or member of a corporation is notice to that corporation, 
if the officer or member, by appointment, or by usage, had 
authority to receive it for the corporation; but notice to any 
member is not necessarily notice to a corporation. 

SECTION VII. 

HOW A PRINCIPAL IS AFFECTED BY THE ACTS OF HIS AGENT. 

If an agent makes a fraudulent representation, a principal 
would be liable for resulting injury, although personally ignorant 
and innocent of the wrong; nor can he take any benefit there¬ 
from. A principal cannot, of course, restrict his liability by 
calling himself an agent, although this is sometimes attempted. 

Payment to an agent of money due to the principal binds 
the principal only when it is made to the agent in the regular 
course of business. Payment to a sub-agent appointed by the 
agent, but whose appointment is not authorized by the principal, 
binds the agent, and renders him liable to the principal for any 
loss of the money in the sub-agent’s hands. Where a legacy 


MUTUAL RIGHTS OF PRINCIPAL AND AGENT. 2 17 

was left to a tradesman, and the executors paid it to a shopman 
who was in the habit of receiving daily payments, this was held 
not a sufficient payment to discharge the executors. And, gen¬ 
erally, a shopman authorized to receive money at the counter, 
or any person authorized to receive money at any particular 
place or in any particular way, is not thereby authorized to 
receive it in any other place or in any other way. Nor is the 
principal bound, if the agent be authorized to receive the money, 
but, instead of actually receiving it, discharge a debt due from 
him to the payer, and then give a receipt as for money paid to 
his principal, unless it can be shown that he has special authority 
to receive payment in this way, or that such payment is justified 
by known usage. 

In general, although a principal may be responsible for the 
deliberate fraud of his agent in the execution of his employment, 
he is not responsible for his criminal acts, unless he expressly 
commanded them. There is, however, a class of cases in which 
the principal has intrusted property to his agent, and the agent 
has used it illegally ; and this act of the agent is evidence, which, 
if unexplained and unanswered, suffices to render the principal 
liable criminally, without proof of his direct participation in the 
act itself. The smuggling of goods, the issue of libellous pub¬ 
lications, and the sale of intoxicating liquors, by agents, belong 
to this class. 

SECTION VIII. 

MUTUAL RIGHTS AND DUTIES OF PRINCIPAL AND AGENT. 

An agent cannot depart from his instructions without making 
himself liable to his principal for the consequences. In deter¬ 
mining the purport or extent of his instructions, custom and 
usage in like cases will often have great influence; because, 
on the one hand, the agent is entitled to all the advantages 
which a known and established usage would give him ; and, on 
the other, the principal has a right to expect that his agent will 
conduct himself according to such usage. But usage is never 
permitted to prevail over express instructions. A principal who 
accepts the benefit of an act done by his agent beyond or aside 
from his instructions, discharges the agent from responsibility 


218 


AGENCY. 


therefor. And any unnecessary delay in renouncing the trans¬ 
action, or any endeavor to wait and make a profit out of it, is 
an acceptance of the act. But if the agent has bought goods for 
his principal without authority, the latter may renounce the 
purchase, and, nevertheless, hold the goods as security for his 
money, if that has been advanced on them. 

In general, every agent is entitled to indemnity from his 
principal, when acting in obedience to his lawful orders, or when 
he, in conformity with his instructions, does an act which is not 
wrong in itself, and which he is induced by his principal to 
suppose right at that time. 

An attorney or agent cannot appoint a sub-attorney or agent, 
unless authorized to do so expressly, or by a certain usage, or 
by the obvious reason and necessity of the case. Thus, a con¬ 
signee or factor for the sale of merchandise may employ a 
broker to sell, when this is the usual course of business. A 
sub-agent, appointed without such authority, is only the agent 
of the agent, and not the agent of the principal; unless his 
appointment is in some way authorized or confirmed and ratified 
by the principal. 

An agent is bound to use, in the affairs of his principal, all 
that care and skill which a reasonable man would use in his own. 
And he is also bound to the utmost good faith. Where, how¬ 
ever, an agent acts gratuitously, without an agreement for 
compensation, or any legal right to compensation growing out 
of his services, he will not be held responsible for other than 
gross negligence. A strictly gratuitous agent will be held re¬ 
sponsible for property intrusted to him, if it be lost or injured 
by his gross negligence. 

For any breach of duty, an agent is responsible for the 
whole injury thereby sustained by his principal; and, generally, 
a verdict against the principal for misconduct of the agent 
measures the claim of the principal over against the agent. 
The loss must be capable of being made certain and definite; 
and then the agent is responsible, if it could not have happened 
but for his misconduct, although not immediately caused by it. 
Thus, where an insurance-broker was directed to effect insurance 
on goods “from Gibraltar to Dublin,” and caused the policy to 


MUTUAL RIGHTS OF PRINCIPAL AND AGENT 219 

be made, “beginning from the lading of the goods on board,” 
and they were laden on board at Malaga, and went thence to 
Gibraltar, and sailed for Dublin, and were lost on the voyage, 
so that the policy did not cover them because they were not 
laden at Gibraltar, this was held to be gross negligence on his 
part, and he was held responsible for the value of the goods. 

If any agent embezzles his employer’s property, it is quite 
clear that the employer may reclaim it whenever and wherever 
he can distinctly trace and identify it. But if it be blended 
indistinguishably with the agent’s own goods, and the agent die 
or become insolvent, the principal can claim only as a common 
creditor, as against other creditors ; but as against the factor or 
agent himself, the whole belongs in law to the principal; because 
the factor or agent had no right thus to mix up the property of 
another with his own, and if he chooses to do so, he must lose 
all of his own property that cannot be separated from that 
which is not his own. 

An agent employed to sell property cannot buy it himself; 
nor, if employed to buy, can he buy of himself; unless expressly 
authorized to do so. Nor can a trustee purchase the property 
he holds in trust for another. But the other party may ratify 
and confirm such sale or purchase by his agent; and he will do 
this by accepting the proceeds and delaying any objection for a 
long time after the wrongful act is made known to him. And 
if a trustee or agent to sell property buys it, not in his own 
name, but through somebody else, the sale is void. 

Among the obvious duties of all agents is that of keeping 
an exact account of their doings, and particularly of all 
pecuniary transactions. After a reasonable time has elapsed, 
the court will presume that such an account was rendered, 
accepted, and settled. Otherwise, every agent might always 
remain liable to be called upon for such account. Moreover, he 
is liable not only for the balances in his hands, but for interest; 
or even, where there has been a long delay to his own profit, he 
might be liable for compound interest, on the same ground on 
which it has been charged in similar cases against executors, 
trustees, and guardians. No interest whatever would be charged, 
if such were the intention of the parties, or the effect of the 


220 


AGENCY. 


bargain between them; and this intention may be inferred 
either from direct or circumstantial evidence,—as the nature of 
the transaction, or the fact that the principal knew that the 
money lay useless in the agent’s hands, and made no objection 
or claim. 

The general rule is, that a principal may revoke his agency, 
and an agent may throw up the agency, at pleasure. But neither 
would be permitted to exercise this power in an unfair and 
injurious manner which circumstances do not require or justify, 
without being responsible to the other party for any damages 
caused by his wrongful act. 

Insanity revokes authority, especially if legally ascertained. 
But if the principal, when sane, gave an authority to his agent, 
and a third party acts with the agent in the belief of his 
authority, but after the insanity of the principal has revoked it, 
the insanity not being known to this third party, this revocation 
will not be permitted to take effect to the injury of this third 
party. 

SECTION IX. 

FACTORS AND BROKERS. 

All agents who sell goods for their principals, and guarantee 
the price, are said in Europe to act under a del credei'e commis¬ 
sion. In this country, this phrase is seldom used, nor is such 
guaranty usually given, except by commission-merchants. And 
where such guaranty is given, the factor is so far a surety, that 
his employers must first have recourse to the principal debtor. 
Still his promise is not “a promise to pay the debt of another,” 
within the Statute of Frauds. Nor does he guarantee the safe 
arrival of the money received by him in payment of the goods, 
and transmitted to his employer, but he must use proper caution 
in sending it. And if it is agreed that he shall guarantee the 
remittance, and charge a commission for so doing, he is liable, 
although he does not charge the commission. If he takes a 
note from the purchaser, this note is his employer’s; and if he 
takes depreciated or bad paper, he must make it good. 

A broker or factor is bound to the care and skill properly 
belonging to the business which he undertakes, and is responsi¬ 
ble for the want of it. 


FACTORS AND BROKERS. 


221 


A factor intrusted with goods may pledge them for advances 
to his principal, or for advances to himself to the extent of his 
lien for charges and commissions. And his power to pledge 
them, which grows out of the law-merchant, has been much 
enlarged by statute in many of our States. 

The mere wishes or intimations of his employer, if suffi¬ 
ciently distinct, have the force of instructions. Thus, in New 
York, a principal wrote to his factor, stating that he thought 
there was a short supply of the goods he had consigned, and 
giving facts on which his opinion was founded, and concluded, 
“ I have thought it best for you to take my pork out of the 
market for the present, as thirty days will make an important 
change in the value of the article.” This was considered by 
the court to be a distinct instruction, binding upon the factor; 
and he was therefore held liable for the loss caused by selling 
the pork within the thirty days. 

All instructions the agent or factor must obey; but may 
still, as we have already stated, depart from their letter, if in 
good faith, and for the certain benefit of his employer, in an 
unforeseen exigency. Having possession of the goods, he may 
insure them; but is not bound to do so, nor even to advise 
insurance, unless requested, or unless a distinct usage makes 
this his duty. He has much discretion as to the time, terms, 
and manner of a sale, but must use this discretion in good faith. 
For a sale which is precipitated by him without reason and 
injuriously is void, as unauthorized. If he send goods to his 
principal without order, or contrary to his duty, the principal 
may return them, or, acting in good faith and for the benefit of 
the factor, may sell them as the factor’s goods. 

Although a factor charges no guaranty commission, he is 
liable to his principal for his own default; so he is if he sells on 
credit, and, when it expires, takes a note to himself; but if he 
takes at the time of the sale a negotiable note from a party in 
fair credit, and the note is afterward dishonored, this is the loss 
of his employer, unless the factor has guaranteed it. 

If he sells the goods of many owners to one purchaser, 
taking a note for the whole to himself, and gets it discounted 
for his own use or accommodation, he is then liable without any 


222 


AGENCY. 


guaranty for the payment of that note. So he is if he gets 
discounted for his own use a note taken wholly for his princi¬ 
pal’s goods. But he may discount the note to reimburse himself 
for advances, without making himself liable. If he sends his 
own note for the price to his employer, he must pay it. 

As a factor has possession of the goods, he may use his own 
name in all his transactions, even in suits at law: but a broker 
can buy, sell, receipt, &c., only in the name of his employer. 
So, a factor has a lien on the goods in his hands for his advances, 
his expenses, and his commissions, and for the balance of his 
general account. And the factor may sell from time to time 
enough to cover his advances, unless there be something in his 
employment or in his instructions from which it may be inferred 
that he had agreed not to do so. But a broker, having no 
possession, has no lien. The broker may act for both parties, 
and often does so. But, from the nature of his employment, a 
factor should act only for the party employing him. 

A broker has no authority to receive payment for the goods 
he sells, unless that authority be given him, expressly or by 
usage. Nor will payment to a factor discharge a debtor who 
has received notice from the principal not to make such pay¬ 
ment. 

Generally, neither factor nor broker can claim their com¬ 
missions until their whole service be performed, and in good 
faith, and with proper skill, care, and industry ; and their 
negligence may be given in evidence either to lessen their 
compensation or commissions, or to bar them altogether. But 
if the service begins, and is interrupted wholly without their 
fault, they may claim a proportionate compensation. If either 
bargains to give his whole time to his employer, he will not be 
permitted to derive any compensation for services rendered to 
other persons. Nor can either have any valid claim against 
any one for illegal services, or those which violate morality or 
public policy. 

A principal cannot revoke an authority given to a factor, 
after advances made by the factor, without repaying or securing 
the factor. 

The distinction between a foreign and a domestic factor is 


FORMS OF POWER OF ATTORNEY, ETC. 


223 


quite important, as they have quite different rights, duties, and 
powers, by the law-merchant generally. A domestic factor is 
one who is employed and acts in the same country with his 
principal. A foreign factor is one employed by a principal who 
lives in a different country ; and a foreign factor is as to third 
parties—for most purposes and under most circumstances—a 
principal.. Thus, they cannot sue the principal, because they 
are supposed to contract with the factor alone, and on his 
credit, although the principal may sue them; and a foreign 
factor is personally liable, although he fully disclose his agency, 
and his principal is known. 

The following forms of powers of attorney are those most 
frequently required; and from them, by suitable alterations, 
powers of attorney may be framed for any purpose : 

( 71 .) 

Power of Attorney. 

Know all Men by these Presents, That I ( the name of the 

principal or party appointing) of {residence) 

have constituted, ordained, and made, and in my stead and place put, and 
by these presents do constitute, ordain, and make, and in my stead and 
place put {name of attorney ) to be my true, sufficient, and lawful attorney 
for me and in my name and stead to {here set forth the purposes for which 
the power is given) 

Giving and hereby granting unto him, the said attorney, full power and 
authority in and about the premises ; and to use all due means, course, and 
process in law, for the full, effectual, and complete execution of the busi¬ 
ness afore described ; and in my name to make and execute due acquittance 
and discharge; and for the premises to appear, and the person of me the 
constituent to represent before any governor, judges, justices, officers, and 
ministers of the law whatsoever, in any court or courts of judicature, and 
there on my behalf, to answer, defend, and reply unto all actions, causes, 
matters, and things whatsoever relating to the premises. Also to submit 
any matter in dispute, respecting the premises, to arbitration or otherwise ; 
with full power to make and substitute, for the purposes aforesaid, one or 
more attorneys, under him, my said attorney, and the same again at pleasure 
to revoke. And generally to say, do, act, transact, determine, accomplish, 
and finish all matters and things whatsoever relating to the premises, as 
fully, amply and effectually, to all intents and purposes, as I the 

said constituent, if present, ought or might personally, although the matter 
should require more special authority than is herein comprised, I 


224 


AGENCY. 


the said constituent ratifying, allowing, and holding firm and valid all what¬ 
soever my said attorney or his substitutes shall lawfully do, or cause to be 
done, in and about the premises, by virtue of these presents. 

In Witness Whereof, I have hereunto set my hand and seal this 
day of in the year of our Lord eighteen hundred and 

(Signature.) (Seal.) 

Signed ’ Sealed ’ and Delivered in Presence of us 

Sometimes a power of attorney is given without any power 
of substitution. This may be by inadvertence, or because it 
was not intended that the attorney should substitute anybody 
in his place. Afterwards, it is desired to give him this power 
to substitute others. And this may be done by a separate 
instrument. 

( 72 .) 

Power of Substitution. 

Know all Men by these Presents, That I 
by virtue of the power and authority to me given, in and by the letter of 
attorney of (the principal) which is hereunto annexed (or described 

without being annexed ), do make, substitute and appoint (name of stib- 
stitute ) as well for me as the true and lawful attorney and substitute of the 
said constituent named in the said letter of attorney, to do, execute, and 
perform all and everything requisite and necessary to be done, as fully, to 
all intents and purposes, as the said constituent or I myself could do if 
personally present; hereby ratifying and confirming all that the said attorney 
and substitute hereby made shall do in the premises by virtue hereof and of 
the said letter of attorney. 

In Witness Whereof, I have hereunto set my hand and seal the 
day of in the year of our Lord one thousand eight hundred 

and 

(Signature.) (Seal.) 

Executed and Delivered in the Presence of 

( 73 .) 

Power of Attorney in a Shorter Form. 

Know all Men by these Presents, That I (name of principal) 

have made, constituted and appointed, and by these presents do make, con¬ 
stitute and appoint (na7ne of attorney) my true and lawful attorney for 
me and in my name, place, and stead to 
(here describe the thing to be done) 

giving and granting unto my said attorney full power ard authority to do 
and perform all and every act and thing whatsoever requisite and necessary 
to be done in and about the premises, as fully to all intents and purposes, 


FORMS OF POWER OF ATTORNEY, ETC. 


225 

as I might or could do if personally present, with full power of substitution 
and revocation, hereby ratifying and confirming all that my said attorney or 
his substitute shall lawfully do or cause to be done by virtue hereof. 

In "Witness Whereof, I have hereunto set my hand and seal the 

day of in the year one thousand eight hundred 

and 

{Signature) {Seal) 

Executed and Delivered in the Presence of 

( 74 .) 

Full Power of Attorney to demand and recover Debts. 

Know all Men by these Presents, That I {name of principal) 

have constituted, ordained and made, and in my stead and place put, and by 
these presents do constitute, ordain, and make, and in my stead and place 
put {name of attorney ) to be my true, sufficient and lawful attorney for 
me and in my name and stead, and to my use, to ask, demand, levy, require, 
recover and receive of and from all and every person or persons whomso¬ 
ever the same shall or may concern, all and singular sum and sums of 
money, debts, goods, wares, merchandise, effects and things, whatsoever 
and wheresoever they shall and may be found due, owing, payable, belong¬ 
ing and coming unto me the constituent, by any ways and means whatsoever. 

Giving and hereby Granting unto my said attorney full and whole 
strength, power and authority in and about the premises ; and to take and 
use all due means, course and process in the law, for the obtaining and 
recovering the same ; and of recoveries and receipts thereof, and in my 
name to make, seal and execute due acquittance and discharge; and for the 
premises to appear, and the person of me the constituent to represent 
before any governor, judges, justices, officers and ministers of the law 
whatsoever, in any court or courts of judicature, and there, on my behalf, 
to answer, defend and reply unto all actions, causes, matters and things 
whatsoever, relating to the premises. Also to submit any matter in dispute 
to arbitration or otherwise, with full power to make and substitute one or 
more attorneys under my said attorney, and the same again at pleasure to 
revoke. And generally to say, do, act, transact, determine, accomplish and 
finish all matters and things whatsoever, relating to the premises, as fully, 
amply, and effectually, to all intents and purposes, as I the said constituent 
if present, ought or might personally, although the matter should require 
more special authority than is herein comprised, I the said constituent 
ratifying, allowing and holding firm and valid, all and whatsoever my said 
attorney or his substitutes shall lawfully do, or cause to be done, in and 
about the premises, by virtue of these presents. 

In Witness Whereof, I have hereunto set my hand and seal, this 

day of in the year of our Lord one 

thousand eight hundred and 

{Signature) {Seal) 

Signed, Sealed\ and Delivered in presence of us, 

15 


226 


AGENCY ,; 


( 75 .) 

Power of Attorney to sell and deliver Chattels. 

Know all Men by these Presents, That I, the undersigned, for value 
received, do hereby constitute and appoint 

to be my true and lawful attorney, for me and in my name and 
behalf, to sell, transfer, and deliver unto or any 

other person or persons ( here describe the things to be sold) 

And further, one or more persons under him to substitute with like power. 

In Witness Whereof, I have hereunto set my hand and seal this 
day of 18 

( Witnesses .) ( Signature) (Seal.) 

( 76 .) 

Power of Attorney given by Seller to Buyer. 

Know all Men by these Presents, That I 
for value received, have bargained, sold, assigned, and transferred, and by 
these presents do bargain, sell, assign, and transfer, unto (name of the 

buyer) the following articles, namely, (describe the articles) and I do 

hereby constitute and appoint the said (the buyer) my true and lawful 

attorney irrevocable, for me and in my name and stead, but to my use, to 
sell, assign, transfer, and set over all or any part of the said (the goods) 
and for that purpose to make and execute all necessary acts of assignment 
and transfer, and one or more persons to substitute with like full power, 
hereby ratifying and confirming all that my said attorney or his substitute or 
substitutes shall lawfully do by virtue hereof. 

In Witness Whereof, I have hereunto set my hand and seal, the 

day of one thousand eight hundred 

and 

(Signature) (Seal.) 

Signed, Sealed, and Delivered in Presence of 

( 77 .) 

Power of Attorney to sell Shares of Stock, with Ap¬ 
pointment by Attorney of Substitute. 

Know all Men by these Presents, That, for value received, I (name 
of the principal) of do hereby make, constitute, and 

appoint irrevocably, my true and lawful attorney (with 

power of substitution), for and in my name and on my behalf, to sell, assign, 
and transfer unto (name of buyer) share now standing in my name 

in the capital or joint stock of the 

And my said attorney is hereby fully empowered to make and pass all neces¬ 
sary acts for the said assignment and transfer. 

Witness my hand and seal, 18 

(Signature) (Seal.) 

Signed ’ Sealed, and Delivered in the Presence of 


FORMS OF POWER OF ATTORNEY, ETC. 2 2 J 

For value received, I appoint, irrevocably, ( name of the substitute') as my 
substitute, with all the powers above given to me. 

Witness my hand and seal, 18 

{Signature) {Seal.) 

Signed\ Sealed\ and Delivered in the Presence of 


( 78 .) 

Power of Attorney to Subscribe for Stock. 

Know all Men by these Presents, That I, the undersigned, do hereby 
irrevocably constitute and appoint to be my true and 

lawful attorney, for me and in my name and behalf to subscribe for 
shares in the capital stock of the And further, one or more 

persons under him to substitute with like power. 

In Witness Whereof, I have hereunto set my hand and seal, this 
day of 18 

Witnesses present, {Seal.) 

( 79 .) 

Proxy, or Power of Attorney to Vote. 

Know all Men by these Presents, That I {name of the principal) 
of do hereby appoint to be my substitute 

and proxy for me, and in my name and behalf to vote at any election of 
directors or other officers, and at any meeting of the stockholders of the 
, as fully as I might or could were I personally present. 

In Witness Whereof, I have hereunto set my hand and seal, this 
day of 18 

Witnesses present, {Signature) 

( 80 .) 

Proxy, Revoking all Previous Proxies. 

Know all Men by these Presents, That I, the undersigned, stock¬ 
holder in the {name of the company) do hereby appoint 

my true and lawful attorney, with power of substitution, 
for me and in my name to vote at the meeting of the stockholders in said 
company, to be held at or at any adjournment 

thereof, with all the powers I should possess if personally present, hereby 
revoking all previous proxies. 


Witness, {Signature) 

( 81 .) 

Proxy, with Affidavit of Ownership, in Use in New York. 

Know all Men by these Presents, That I, do hereby 

constitute and appoint my attorney and agent for me 

and in my name, place, and stead, to vote as my proxy at any election of 
directors of the according to the number of 

votes I should be entitled to vote if then personally present. 


228 


PARTNERSHIP. 


In Witness Whereof, I have hereto set my hand and seal, this 
day of one thousand eight hundred and 

( Signature.) (Seal.) 

Signed ’ Sealed\ and Delivered i?i Presence of 


I do swear (or affirm) that the shares on which my attorney and 
agent in the above proxy is authorized to vote, do not belong, and are no* 
hypothecated to the said company, and that they are not hypothecated or 
pledged to any other corporation or person whatever ; that such shares have 
not been transferred to me for the purpose of enabling me to vote thereon 
at the ensuing election, and that I have not contracted to sell or transfer 
them upon any condition, agreement, or understanding, in relation to my 
manner of voting at the said election. 

Sworn to this day of 18 , before me, 

(Signature.) 


( 82 .) 


Power to Receive Dividend. 


Know all Men by these Presents, That I, of 

do authorize, constitute, and appoint to receive 

from the (name of the company) the dividend now due to me on all 

stock standing to my name on the books of the said company, and receipt 
for the same ; hereby ratifying and confirming all that may lawfully be done 
in the premises by virtue hereof. 

Witness my hand and seal, this day of 18 

(Signature.) (Seal.) 

Signed\ Sealed, and Delivered in the Presence of 


CHAPTER XVIII. 

PARTNERSHIP. 


SECTION I. 

WHAT A PARTNERSHIP IS. 

When two or more persons combine their property, labor, or 
skill, for the transaction of business for their common profit, 
they enter into partnership. Sometimes the word “firm” is 
used as synonymous with partnership; sometimes, however, it 
means only the copartnership-name. 




HOW A PARTNERSHIP MA Y BE FORMED. 


229 


A single joint transaction, out of which, considered by 
itself, neither profit nor loss arises, will not create a partner¬ 
ship. If a joint purchase be made, and each party then takes 
his distinct and several share of the goods, this is no part 
nership. 

Any persons competent to transact business on their own 
account may enter into partnership for that purpose, and no 
others. 

SECTION II. 

HOW A PARTNERSHIP MAY BE FORMED. 

No especial form or manner is necessary. It may be by oral 
agreement, or by a written agreement, which may have a seal 
or not. But the liability and authority of the partners begin 
with the.actual formation of the partnership, and do not wait 
for the execution of any articles. In general, if there be an 
agreement to enter into business, or into some particular trans¬ 
action, together, and share the profits and losses, this constitutes 
a partnership, which is just as extensive as the business pro¬ 
posed to be done, and not more so. The parties may agree to 
share the profits in what proportion they choose ; but in the 
absence of any agreement, the law presumes equal shares. 

They may agree as to any way of dividing the losses, or 
even that one or more partners alone shall sustain them all, 
without loss to the rest. And this agreement is valid as between 
themselves; but it will not protect those partners who were to 
sustain no loss from responsibility to third parties, unless the 
third parties knew of this agreement between the partners, and 
gave credit accordingly. If A, B, & C, being partners, agree 
that A should not lose anything by their business, and a 
person knowing this bargain dealt with the firm on the credit 
of B & C, he could not call on A. But an agreement exempt¬ 
ing partners from loss generally, or from loss beyond the 
amount invested, will only operate between the partners, unless 
it can be shown that the third party not only knew the agree¬ 
ment, but contracted with the firm on the basis of this agree¬ 
ment. And, generally, stipulations in articles of copartnership 
limiting the power of a partner, are not binding on third parties 


230 


PARTNERSHIP. 


who are ignorant of them. Each partner is absolutely responsi¬ 
ble to every creditor of the copartnership for the whole amount 
of the debt. And if thereby obliged to suffer loss, his only 
remedy is against the other partners. 

Although partners may agree and provide as they will in 
their articles, a long neglect of these provisions will be regarded 
as a mutual waiver of them. 

Persons may be liable as partners to third parties or strangers, 
who are not partners as between themselves. Whether they 
are partners as to each other would generally be determined by 
the intention of the parties, as drawn from their contract,— 
whether oral or written,—under the ordinary rules of evidence 
and construction. But whether one is liable as a partner to one 
who deals with the firm must depend in part upon his intention, 
but more upon his acts ; for if by them he justifies those who 
deal with the firm in thinking him a partner in that business, 
he must bear the responsibility; as if he declare that he has a 
joint interest in the property, or conducts the business of the 
firm as a partner, accepting bills, or suffers his name to be used 
upon cards, or in advertisements, or on signs, or in any similar 
manner. The declarations or acts of one person cannot, 
however, make another person liable as partner, without 
co-operation or consent, by word or act, on his part. The rule 
is this: that one who thus holds himself out as a partner, when 
he really is not one, is responsible to a creditor who on these 
grounds believed him to be a partner ; but not to one who 
knew nothing of the facts, or who, knowing them, knew also 
that this person was not a partner. 

A secret partner is one who is actually a partner by particb 
pation of profit, but is not avowed or known to be such; and a 
dormant partner is one who takes no share in the conduct or 
control of the business of the firm. Both of these are liable 
to creditors (even if the creditors did not know them to be 
members of the firm), on the ground of their interest and 
participation in the profits, which constitute, with the property 
of the firm, the funds to which creditors may look for payment. 
A nominal partner is one who holds himself out to the world as 
such, but is not so in fact. He is liable to creditors of the firm, 


HOW A PARTNERSHIP MA Y BE DISSOLVED. 231 

on the ground that he justifies them in trusting the firm on his 
credit, and, indeed, invites them to do so by declaring himself 
to be a partner. 

The principal test of membership in a mercantile firm is 
said to be the participation in the profits. Thus, if one lend 
money to be used in a business, for which he is to receive a 
share in the profits, this would make him a partner ; and if he 
is to receive lawful interest, and, in addition thereto, a share of 
the profits, this would generally make him liable as a partner to 
a creditor of the firm. 

Sometimes a clerk or salesman, or a person otherwise 
employed for the firm, receives a share of the profits, instead 
of wages. Formerly it was held, that if such person received 
any certain share, say “ one-tenth part of the net annual profits,” 
this made him liable as a partner; but if he received “a salary 
equal in amount to one-tenth of the net profits,” this did not 
make him a partner. Now, the courts would look more at the 
actual intention of the parties, and their actual ownership of 
an interest in the funds of the partnership, and not be governed 
by the mere phraseology used. If in fact he works for wages, 
although these wages are measured by the profits, he is no 
partner, and therefore not liable for the debts, as every part- 
.ner is. 

Hence, factors and brokers for a commission on the profits, 
masters of vessels who engage for a share of the profits, or 
seamen employed in whale-ships, are none of them partners. 

A partnership usually has but one business name ; but there 
does not seem to be any legal objection to the use of two 
names, especially for distinct business transactions; as A B & 
Co. for general business, and the name of A C & Co. for 
the purpose of making or indorsing negotiable paper. 

SECTION III. 

HOW A PARTNERSHIP MAY BE DISSOLVED. 

If the articles between the partners do not contain an 
agreement that the partnership shall continue for a specified 
time, it may be dissolved at the pleasure of either partner. 


232 


PARTNERSHIP. 


But no partner can exercise this power wantonly and injuriously 
to the other partners, without making himself responsible for 
the damage he thus causes. If there be a provision that the 
partnership shall continue a certain time, this is binding. 

If either partner were to undertake to assign his interest, 
for the purpose of withdrawing from the firm, against the will 
of the partners, without good reason, and in fraud of his express 
agreement, a court of equity would interfere and prevent him. 
For the assignment of a partner’s interest, or of his share of 
the profits, operates at once a dissolution of the partnership. 

Such assignment may transfer to the assignee the whole 
interest of the assignor, but cannot give him a right to become 
a member of the firm. There seems to be an exception to this 
rule where the partnership is very numerous, and the manner 
of holding shares, by scrip or otherwise, indicates the original 
intention of making the shares transferable. Such a partner¬ 
ship is in effect a joint-stock company; which form of associa¬ 
tion is not usual here, because incorporation is better, and is 
easily obtained. 

Death of a general or even of a special partner operates a 
dissolution ; and the personal representatives of the deceased 
do not take his place, unless there be in the articles an express 
provision that they shall. And such provisions are construed 
as giving the heirs or personal representatives the right of 
electing whether to become partners or not. If either party 
is unable to do his duty to the partnership, as by reason of 
insanity or a long imprisonment, or if he be guilty of material 
wrong-doing to the firm, a court of equity will decree a dissolu¬ 
tion. And if the original agreement were tainted with fraud, 
the court will declare it void, from its beginning. 

Whenever a court of equity decrees a dissolution of the 
partnership, it will also decree that an account be taken between 
the partners, if requested by either partner. And if necessary 
to do justice, it will decree a sale of the effects and a distribu¬ 
tion of the proceeds, after a consideration of all the facts of the 
case and the whole condition of the firm. Such a decree will 
be made if a partner die or become bankrupt. 

If the whole interest of a copartner is levied upon and sold 


THE PROPERTY OF THE PARTNERSHIP. 


233 


on execution, this makes a dissolution, and the purchaser 
becomes,—like every other assignee of a partner,—not a part¬ 
ner, but only a tenant in common (that is, a joint owner) with 
the other partners; but if the levy and sale are only of a part, 
which may be severed from the rest, this may not operate a 
dissolution except as to that part. 

If one partner retires, this operates in law a dissolution, and 
the remaining partners constitute in law a new firm, although 
in fact the old firm frequently continues and goes on with its 
business, with or without new members, as if it were the same 
firm. 

The partner retiring should withdraw his name from the 
firm, and give notice, by the usual public advertisement, of his 
retirement, and also, by personal notice, by letter or otherwise, 
to all who usually do business with the firm ; and after such 
notice he is not responsible, even if his name be retained in the 
firm by the other partners, if this is done without his consent. 
Nor is he responsible to any one who has in any way actual 
knowledge of his retirement. 

A dormant or secret partner is not liable for a debt con¬ 
tracted after his retirement, although he give no notice, because 
his liability does not rest upon his giving his credit to the firm, 
but upon his being actually a partner. 

SECTION IV. 

THE PROPERTY OF THE PARTNERSHIP. 

A partnership may hold real estate as well as personal 
estate, and a partnership may be formed to trade in land, or to 
cultivate land. But the rules of law in respect to real estate, 
as in relation to title, conveyance, dower, inheritance, and the 
like, make some difference. As far, however, as is compatible 
with these rules, it seems to be agreed that the real estate of 
the partnership is treated as if it were personal property, if it 
have been purchased with the partnership funds and for part¬ 
nership purposes. 

There is some difficulty in explaining this matter to those 
who are not acquainted with the peculiar law of real estate. 


234 


PARTNERSHIP. 


Thus, no sale of land is valid except by deed, recorded; and 
only one who is thus a grantee under seal by record has a 
legal title. But a court of equity acknowledges and protects an 
equitable title in those who really possess all the interest in the 
land, as partners do who have paid for it, though it stands in the 
name of one partner only. But a court of equity cannot disre¬ 
gard the laws of conveyance and record, and therefore say that 
this partner is the only slegal owner , but that he owns the land 
as trustee for the firm. And then they compel him to sell it, or 
otherwise dispose of it, as the interests of the firm or of their 
creditors require. 

So land thus purchased does not go to the heirs of the part¬ 
ner or partners in whose name it may stand, but is first subject 
to the debts of the firm, and then to the balance which may be 
due to either partner on winding up their affairs. But when 
these debts and claims are adjusted, any surplus of the real 
estate will then descend as real estate, and not as personal 
estate. 

Improvements made with partnership funds on the real 
estate of a partner will be regarded as partnership property. 

The widow has her dower only after the above-mentioned 
debts and claims are adjusted. And while the legal title is pro¬ 
tected, as it must be for the purpose of conveyance and other 
similar purposes, the person holding this legal title will be held 
as a trustee for the partnership if the partnership be entitled to 
the beneficiary interest. 

But a purchaser of partnership real property, without 
notice or knowledge, from a partner holding the same by legal 
title, is protected against the other partners. If, however, the 
purchaser has such knowledge, the conveyance may be avoided 
as fraudulent, or he may be held as trustee, the land being in 
his hands chargeable with the debts and claims of the partner¬ 
ship. 

SECTION V. 

THE AUTHORITY OF EACH PARTNER, AND THE JOINT LIABILITY OF THE 
PARTNERSHIP. 

This authority is very great, because the law-merchant 
makes each partner an agent of the whole partnership, with full 


AUTHORITY OF EACH PARTNER, ETC. 


235 


power to bind all its members and all its property, in transac¬ 
tions which fall within the usual business of the firm ; as loans, 
borrowing, sales—even of the whole stock, pledges, mortgages, 
or assignments; and this last extends even to an honest and 
prudent assignment of the whole stock and personal property 
to trustees to pay partnership debts. It extends to the making 
or indorsing negotiable paper, and to transactions out of the 
usual business of the firm, if they arose from and were fairly con¬ 
nected with tha.t business. 

Nor is any party dealing with a partner affected by his want 
of good faith towards the partnership, unless he colluded with 
the partner, and participated in his want of good faith, by fraud 
or gross negligence. But a holder of a note or bill signed or 
indorsed by a partner without authority, has no claim against 
the partnership, if he knew or should have known the want of 
authority. 

A partner cannot, in general, bind the firm by a guaranty, 
a letter of credit, or a submission to arbitration, without author¬ 
ity, because these things do not belong generally and properly 
to commercial business. But anything so done by a partner 
may be adopted and ratified by the partnership, and then it has 
the same force as if originally authorized. And this ratification 
may be formal and express, or consist only of acts which dis¬ 
tinctly imply it; such as assenting to and acting with reference 
to it; and especially receiving and holding the beneficial 
results of it; as, for example, taking and holding money paid 
for it. 

By the earlier and more stringent rules of law, a partner 
could not bind his copartners by an instrument under seal unless 
he was himself authorized under seal ; and their subsequent M 
acknowledgment of his authority did not cure the defect. Now, 
however, a partner may bind his firm by an instrument under 
seal, if it be in the name and for the use of the firm, and in the 
transaction of their usual business, provided the other copart¬ 
ners consent thereto before execution, or adopt and ratify the 
same afterwards ; and they may assent or ratify by word as well 
as by seal; or provided he could have made the same convey¬ 
ance, or done the same act effectually without a deed. And a 


PARTNERSHIP. 


236 

deed executed by one partner in the presence and with the 
assent of the other partners, will bind them. 

A partnership has no seal at law, and can have none; only a 
person or a corporation can have a seal. Instruments are some¬ 
times executed “ A. B. & Co.,” and a seal is affixed to the name. 
This is, strictly speaking, no seal at all; and if the instrument 
needs a seal to make it valid, as if it were a deed of land, it 
would, at law, be wholly void. But the courts in some of our 
States are somewhat lax on this subject, and might construe it 
as the seal of each one of the partners to give the instrument 
validity. 

A majority of the members cannot conclusively bind the 
minority, unless in reference to the internal concerns of the 
firm; as, for example, the salary or appointment of a clerk, the 
hiring or fitting-up of a counting-room, the manner of keeping 
accounts, and the like. But one member may, so far as he is 
concerned, arrest a negotiation which was only begun, and pre¬ 
vent a bargain which would be binding on him, by giving notice 
to the third party of his dissent and refusal in season to enable 
him to decline the bargain without detriment. 

Partners must act as such, to bind each other. Thus, if a 
partner makes a note, and signs it with his own name and his 
partner’s name, as a joint and several note, it does not bind his 
partner, for he had no authority to make such a note. 

If the name of one partner be also the name of the firm,— 
for John Smith and Henry Robinson may do business as part¬ 
ners under the name of “John Smith,”—this name is not neces¬ 
sarily the name of the firm when used in a note or contract; 
and if the partner whose name is used carries on mercantile 
business for himself, it will not be supposed to be used as the 
name of the firm without sufficient proof. 

Persons may give a joint order for goods without becoming 
jointly liable, if it appear otherwise that credit was given to them 
severally. Nor will one have either the authority or the obli¬ 
gation of a partner cast upon him by an agreement of the firm 
to be governed by his advice. Nor shall one be charged as 
partner with others unless he has incurred the liability by his 
own voluntary act. 


AUTHORITY OF EACH PARTNER, ETC. 


237 


The reception of a new member constitutes, in law, a new 
firm ; but the new firm may recognize the old debts, as by 
express agreement, or paying interest, or other evidence of 
adoption, and then the new firm is jointly liable for the old debt. 
But there must be some fact from which the assent of the new 
member to this adoption of the old debt may be inferred, for his 
liability is not to be presumed. 

A notice in legal proceedings, abandonment to insurers by 
one vino was insured for himself and others, a notice to quit of 
one of joint lessors or lessees who are partners in trade, notice 
to one partner of the dishonor of a note or bill bearing the name 
of the firm, a release to one partner, or by one partner,—will 
bind all the partners, and render them jointly liable. But a 
service of legal process should be made upon each partner 
personally. 

If money be lent to a partner for partnership purposes, it 
creates a partnership debt; but not if lent expressly on the 
individual credit of the person borrowing; and not if the bor¬ 
rowing partner receives it to enable him to pay his contribution 
to the capital of the firm. Though the money be not used for 
tne firm, if it was borrowed by one partner on the credit of the 
firm, in a manner and under circumstances justifying the lender 
in trusting to that credit, it creates a partnership debt. And if 
a partner uses funds in his hands as trustee, for partnership 
purposes, the firm are certainly jointly bound, if it was done 
with their knowledge. And if it was done without their knowl¬ 
edge, and the partners are distinctly and directly benefited by 
the transaction, they will be deemed to have authorized it. 

If in any case a person, knowing the existence of the firm, 
gave credit to a single partner only, then he can look only to 
that partner, and not to the firm, although the money was applied 
to, and used for, partnership purposes. But if the partner held 
himself out as borrowing for the firm, and the lender without 
any want of due care gave credit to the firm, and the transac¬ 
tion was a fair business transaction on the part of the lender, 
the firm will be liable, although the money is fraudulently appro¬ 
priated by the partner to his own use. 

In the absence of evidence showing to whom the credit was 


PARTNERSHIP. 


238 

given, the fact that money lent to one partner was applied 
to the use of the firm will make the firm liable for the payment; 
but not if the partner employed it as his contribution to increase 
the capital of the firm. 

If the purchaser of goods or the borrower of money have a 
dormant and secret partner, and the goods were bought or the 
money borrowed for partnership purposes, the seller or lender 
may look to both partners for payment, unless the seller or 
lender, knowing all the partners, gave credit to one only. 

The firm is liable only to one who deals with a partner in 
good faith. Thus, if one receives negotiable paper bearing the 
name of a firm, knowing that it is not in the business of the 
firm, and is given for no consideration received by the firm, he 
cannot hold the firm. And if a creditor of one partner receive 
for his separate debt a partnership security, this would be a fraud, 
unless the partner had, or was supposed by the creditor to have, 
the authority of the rest. 

If he supposed the partner had this authority, he cannot hold 
the partnership if the partner had not the authority, unless the 
partnership had caused him to believe it. And if the partner¬ 
ship security be transferred for two considerations, one of which 
is private and fraudulent, and the other is joint and honest, the 
partnership is bound for so much of it as is not tainted with 
fraud, and only for that. 

The partnership may be liable for injury caused by the crim¬ 
inal or wrongful acts of a partner, if these were done in the 
transaction of partnership business, and if it was the partnership 
which gave to the wrong-doer the means and opportunity of 
doing the wrong. But an illegal contract will not bind the 
copartners, for the parties entering into it must be presumed to 
know its illegality; and the law enforces no bargain that is con¬ 
trary to law. 

The acknowledgment of one who had been a partner, after 
the dissolution of the partnership, may take the debt out of 
the statute of limitations as to him, but not so as to restore the 
liability of all the partners without their assent. 


REMEDIES OF PARTNERS AGAINST EACH OTHER. 239 
SECTION VI. 

REMEDIES OF PARTNERS AGAINST EACH OTHER. 

It is seldom that a partner can have a claim against another 
partner, as such , which can be examined and adjusted without 
an investigation into the accounts of the partnership, and, per¬ 
haps, a settlement of them. Courts of law have ordinarily no 
adequate means of doing this; and therefore it is generally true 
that no partner can sue a copartner at law for any claim growing 
out of partnership transactions and involving partnership inter¬ 
ests. But the objection to a suit at law between partners goes 
no further than the reason of it; and, therefore, one may sue 
his copartner upon his agreement to do any act which is not so 
far a partnership matter as to involve the partnership accounts. 

If the accounts are finally adjusted, either partner may sue for 
a balance; and so it would be if the accounts generally remained 
open, but a specific part of them were severed from the rest, 
and a balance found on that. The rule is generally laid down, 
that an action cannot be sustained by a partner against a part¬ 
ner for a balance, unless there is an express promise to pay it. 
But such promise would be inferred in all cases in which an 
account had been taken, and a balance admitted to be due. 

In general, any action at law between partners can be main¬ 
tained, only when a rendering of judgment in this action will 
completely terminate all partnership matters, so that no further 
cause of action can grow out of them. 

What a court of law cannot do as to actions between part* 
ners, a court of equity can; and, generally, a court of equity has 
a full jurisdiction over all disputes and claims between partners, 
and may do whatever is necessary to settle them in conformity 
with justice. 

A partner may sue his copartner for money advanced before 
the partnership was formed, although the loan was made to pro¬ 
mote the partnership. And for work done for the firm before he 
became a member of it, he may sue those who were members 
when he did the work. And he may sue a copartner on his note 
or bill, although the consideration was on partnership account; 
but, in general, no action at law can be maintained for work and 
labor performed, or money expended for the partnership. 


240 


PARTNERSHIP. 


A partner who pays more than his proportion of a debt of 
the partnership cannot demand specific contribution from his 
copartners, but must charge his payment to the firm. The 
reason is, that they may have claims against him on other 
accounts, and they must be all settled together to strike the 
balance. 

If one of a firm be a member also of another firm, the one 
firm cannot sue the other; for the same person cannot be plain¬ 
tiff and defendant of record. A cannot sue A; and therefore 
A, B, & C cannot sue C, D, & E. In all these cases an adequate 
remedy may be found in a court of equity. 

If a firm have a negotiable note which it cannot sue, because 
one of its own firm is liable upon it and must be made defendant, 
it can indorse the note over, and the indorsee may sue it in his 
own name, as we have before stated. 

The partners are entitled to perfect good faith from each 
copartner; and a court of equity will interfere to enforce this. 
No partner will be permitted to treat privately, and for his own 
benefit alone, for a renewal of a lease, or to transfer to himself 
any benefit or interest properly belonging to the firm. And so 
careful is a court of equity in this respect, that it will not permit 
a copartner, by his private contract or arrangement, to subject 
himself to a bias or interest which might be injurious to the firm, 
and conflict with his duty to them, but will declare void any 
contract of this kind. 

SECTION VII. 

RIGHTS OF THE FIRM AGAINST THIRD PARTIES- 

If a partner sells the goods of the firm in his own name, the 
firm may sue for the price. But the rights of one who deals in 
good faith with a copartner, as with him alone, are so far regarded, 
that he may set off any claim, or make use of any other defences 
against the suit of the firm, which he could have made had the 
person with whom he dealt sued alone. 

Therefore, if A honestly bought goods of a firm from a part¬ 
ner whom he supposed to be sole owner of them, and paid him 
the price, the firm cannot recover this price from the buyer, 
although the seller sold the goods fraudulently, and cheated the 


RIGHTS OF CREDITORS IN RESPECT TO FUNDS. 241 

firm out of the money, but must charge the price to the selling 
partner. 

A guaranty to a copartner, if for the use and benefit of the 
firm, gives to them a right of action. 

A new firm, created by some change in the membership of 
an old firm, is entitled to the benefit of a guaranty given to the 
old firm, even if sealed, provided it shall distinctly appear that 
the instrument was intended to have that effect, and extend to 
the new firm. 

SECTION VIII. 

RIGHTS OF CREDITORS IN RESPECT TO FUNDS. 

The property of a partnership is bound to pay the paitner- 
ship debts ; and, therefore, a creditor of one copartner has no 
claim to the partnership funds until the partnership debts are 
paid. If there be then a surplus, he may have that copartner’s 
interest therein, in payment of his private debt. 

If a private creditor attaches partnership property, or in any 
way seeks to appropriate it to his private debt, the partnership 
debts being unpaid, he cannot hold it, either at law or in equity. 
Such attachment or appropriation is wholly subject to the para¬ 
mount claims of the partnership creditors, and is wholly defeated 
by the insolvency of the partnership, although the partnership 
creditors have not brought any actions for their debts. 

Hence, if a creditor of A attaches his interest in the property 
of A, B & Co., and a creditor of A, B & Co. attaches the same 
property, the first attachment is postponed to the second ; that 
‘s, it has no effect until the debt of the second creditor is fully 
satisfied, and then it is good for the surplus of property. If, 
however, one partner is dormant and unknown, the creditor of 
the other attaching the stock is not postponed to the creditor 
who discovers the dormant partner and sues him with the other ; 
unless the first attaching creditor’s claim has no reference to the 
partnership business, and that of the second attaching creditor 
has such reference. 

The partnership creditors are restrained from appropriating 
the private property of the copartners until the claims of their 
private creditors are satisfied in courts of equity. And some 

16 


242 


PARTNERSHIP. 


recent adjudications indicate that the rule will become estab¬ 
lished at law. 

I think the law ought to be, and that it is now tending to 
become, this. A partnership is a kind of body by itself, some¬ 
what like a corporation. It has its own funds, and its own debts. 
The individual members may also have each his own funds and 
his own debts. 

The funds of the partnership should first be applied to the 
debts of the partnership ; and, if there be any surplus, the mem¬ 
bers have it, and their creditors get it. So the private funds of 
each member should first be applied exclusively to the payment 
of that person’s private debts; and, when they are wholly paid, 
the surplus should go to the partnership creditors, because each 
partner is responsible for the partnership debts. This rule pre¬ 
vails on the continent of Europe very generally. 

It is now quite certain that the levy of a private creditor of 
one copartner upon partnership property can give him only what 
..that copartner has; that is, not a separate personal possession 
of any part or share of the stock or property, but an undivided 
right or interest in the whole, subject to the payment of debts 
and the settlement of accounts; Including also the right to 
demand an account. 

As to how such levy and sale of the interest of one copartner 
shall Te made by the sheriff, there is much diversity both of 
practice and authority. Upon principle, we think the sheriff 
can neither seize, nor transfer by sale, either the whole stock 
or any specific portion of it. He should, we think, without any 
actual seizure , sell all the interest of the defendant partner in 
the stock and property of the partnership ; much in the same 
way in which he would sell his right to redeem a mortgage, or 
any other incorporeal right, subject to attachment. The pur 
chaser would then have a right to demand an account and 
settlement, and a transfer to himself of any balance or prop¬ 
erty to which the copartner whom be sued would have been 
entitled. 

Where the trustee process, or process of foreign attachment, 
is in use, the better way would be for the sheriff to return a 
general attachment of all the interest of the debtor in the part 


THE EFFECTS OF DISSOLUTION. 


243 

nership property, and summon the other partners as the trustees 
of the debtor. 

It must be stated, however, that the rules of law in regard to 
the liability of partnership property for the private debts of part¬ 
ners, and as to how any such liability may be enforced, are, at 
present, somewhat obscure and uncertain. 

SECTION IX. 

THE EFFECTS OF DISSOLUTION. 

If the dissolution is caused by the death of any partner, the 
whole property goes to the surviving partners. They hold it, 
however, not as their own, but only for the purpose of settle¬ 
ment ; and therefore they have, in relation to it, all the power 
which is necessary for that purpose, and no more. If they carry 
on the business with the partnership funds, they do so at their 
own risk; and the representatives of the deceased may require 
their share of the capital, and choose between calling on them, 
in addition, for interest, or for a share of the profits. 

The survivors are. not partners, but tenants in common 
(joint owners) with the representatives of the deceased of the 
stock or property in possession ; and have all necessary rights 
to settle the affairs of the concern and pay its debts. After a 
dissolution, however caused, one who had been a partner has no 
authority to make new contracts in the name of the firm, as to 
make or indorse notes or bills with the name of the firm, even 
if he be expressly authorized to settle the affairs of the firm. 
There must be a distinct authority to sign for the others who 
were formerly partners. A parol authority will be sufficient, 
even if the general terms of the partnership had been reduced 
to writing. 

It is common, where a partnership is dissolved by mutual 
consent, to provide that some one of the partners shall settle up 
the affairs of the concern, collect and pay debts, and the like. 
But this will not prevent any person from paying to any partner 
a debt due to the firm; and, if such payment be made in good 
faith, the release or discharge of the partner is effectual. 

If all the debts were assigned and transferred to any person, 


PARTNERSHIP . 


244 

as his property, any debtor who had notice of this would be 
bound to make payment to this person alone; and, if he paid 
anybody else, he would be obliged to pay the money over again. 

It is frequently provided, that one partner shall take all the 
property and pay all the debts; but this agreement, though 
valid between the partners, has no effect upon the rights of 
third parties against the other partners ; for they have a valid 
claim against all the partners, of which they cannot be divested 
without their consent. 

This consent of the creditor may be inferred, but not from 
slight evidence ; thus, not from receiving the single partner’s 
note as a collateral security, nor from receiving interest from 
him on the joint debt, nor from a mere change in the head of the 
account, charging the single partner and not the firm. Still, as 
the creditor certainly can assent to this arrangement, and accept 
the indebtedness of one partner instead of that of the firm, so 
it must be equally clear that such assent and intention will bind 
him, if distinctly proved by circumstances. 

SECTION X. 

LIMITED PARTNERSHIPS. 

These have been introduced into some of our States, by 
statutes, which differ somewhat in their provisions. Generally, 
they require, first, one or more general partners, whose names 
shall be known; secondly, special partners, who do not appear 
as members, nor possess the powers or discharge the duties of 
actual partners; thirdly, the sum to be contributed by the 
special partners shall be actually paid in ; lastly, all these arrange¬ 
ments, with such other information as may be needed for the 
security of the public, must be verified under oath, signatures 
of all the parties, and acknowledgment before a magistrate, 
and correctly published. When these requisites are complied 
with, the special partners may lose all they have put in, but 
cannot be held to any further responsibility. But any neglect 
of them, or any material mistake in regard to them, even on the 
part of the printer of the advertisement, wholly destroys their 
effect; and then the special partner is liable for the whole debt, 
precisely like a general partner. 


ARTICLES OF COPARTNERSHIP. 


245 

In a New York case, the amount contributed by the special 
partner was, by mistake of the printer, stated at $5,000, instead 
of $2,000, and it was held that the associates were liable as gen¬ 
eral partners, although the plaintiff did not show that he wa 
actually misled by the error. In another New York case, it was 
held that an assignment of the partnership property, providing 
for the payment of a debt due to the special partner, ratably 
with the other creditors of the firm, or before ?11 the other cred¬ 
itors are satisfied in full for their debts, is void as against the 
creditors ; but it would be valid as against the assignor and those 
creditors who think proper to affirm it. 

( 83 .) 

Articles of Copartnership between two Tradesmen. 

Articles of Agreement, Had, made, concluded, and agreed upon, this 
day of A.D. between 

of trader, and of trader. 

First of all, the said and have 

agreed, and by these presents do agree, to become copartners together in the 
art or trade of and all things thereto belonging, and also, in 

buying, selling, vending, and retailing all sorts of wares, goods, and commo¬ 
dities belonging to the said trade of which said copartnership, 

it is agreed, shall continue from for and during, and unto 

the full end and term of years, from thence next ensuing, and 

fully to be complete and ended. And to that end and purpose he the said 
hath the day of date of these presents, delivered in as stock, the 
sum of and he the said the sum of 

to be used, laid out, and employed, in common trade between them, for the 
management of the said trade of to their utmost benefit 

and advantage. And it is hereby agreed between the said parties, and the 
said copartners, each for himself respectively, and for his own particular 
part, and for his executors and administrators, that each doth covenant, 
promise, and agree, to and with the other of them, his executors and admin¬ 
istrators, by these presents, in manner and form following (that is to say) 
that they the said copartners shall not nor will, at any time hereafter, use, 
exercise, or follow the trade of aforesaid, or any other trade 

whatsoever during the said term, to their private benefit and advantage ; but 
shall and will, from time to time, and at all times, during the said term (if 
they shall so long live), do their and each of their best and utmost endeavors, 
in and by all means possible, to the utmost of their skill and power, for 
their joint interest, profit, benefit, and advantage, and truly employ, buy, 
sell and merchandise, with the stock aforesaid, and the increase thereof in 
the trade of aforesaid, without any sinister intentions or 

fraudulent endeavors whatsoever. And also that they the said copartners 


PARTNERSHIP. 


246 

shall and will, from time to time, and at all times hereafter, during the said 
term, pay, bear, and discharge, equally between them, the rent of the shop, 
which they the said copartners shall rent or hire, for the joint exercising or 
managing of the trade aforesaid. And that all such gain, profit, and increase, 
as shall come, grow, or arise, for or by reason of the said trade, or joint 
business as aforesaid, shall be from time to time, during the said term, 
equally and proportionably divided between them the said copartners, share 
and share alike. And also that all such losses as shall happen in the said 
joint trade, by bad debts, ill commodities, or otherwise without fraud or 
covin, shall be paid and borne equally and proportionably between them. 
And further, it is agreed by and between the said copartners, that there shall 
be had and kept from time to time, and at all times during the said term and 
joint business and copartnership together as aforesaid, perfect, just, and 
true books of account, wherein each of the said copartners shall duly enter 
and set down, as well all money by him received, paid, expended and laid out, 
in and about the management of the said trade, as also all wares, goods, 
commodities, and merchandises, by them or either of them bought and sold 
by reason or means or upon account of the said copartnership, and all other 
matters and things whatsoever, to the said joint trade, and the management 
thereof, in anywise belonging or appertaining, which said books shall be 
used in common between the said copartners, so that either of them may 
have free access thereto without any interruption of the other. And also 
that they the said copartners, once in three months, or oftner if need shall 
require, upon the reasonable request of one of them, shall make, yield, and 
render, each to the other, or to the executors or administrators of the other, 
a true, just, and perfect account of all profits and increase, by them or either 
of them made, and of all losses by them or either of them sustained, and 
also of all payments, receipts, and disbursements whatsoever, by them or 
either of them made or received, and of all other things by them or either 
of them acted, done, or suffered in the said copartnership and joint business 
as aforesaid ; and the same account being so made, shall and will clear, 
adjust, pay, and deliver, each unto the other, at the time of making such 
account, their equal shares of the profits so made as aforesaid ; and at the end 
of the said term of or other sooner determination of 

these presents (be it by the death of one of the said partners or otherwise), 
they the said copartners, each to the other, or in case of the death of either 
of them, the surviving party to the executors or administrators of the party 
deceased, shall and will make a true, just, and final account of all things as 
aforesaid, and divide the profits aforesaid, and in all things well and truly 
adjust the same, and that also upon the making of such final account, all 
and every the stock and stocks, as well as the gains and increase thereof, 
which shall appear to be remaining, whether consisting of money, wares, 
debts, shall be equally parted and divided between 

them the said copartners, their executors or administrators, share and share 
alike. 

In Witness Whereof, &c. 


( Signatures .) 


ARTICLES OF COPARTNERSHIP. 


24 7 

Various Covenants and Clauses which may be introduced in 
Articles of Copartnership according to circumstances. 

Not to trust any one whom the Copartner shall forbid. 

And that neither of the said parties shall sell or credit any goods or 
merchandise belonging to the said joint trade, to any person or persons, 
after notice in writing from the other of the said parties, that such person or 
persons are not to be credited or trusted. 

Not to release a7iy Debt without Consent , £rv. 

And that neither of the said parties shall, without the consent of the 
other, release or compound any debt or demand, due or coming to them on 
account of their said copartnership, except for so much as shall actually be 
received, and brought into the stock or cash account of the said partnership. 

Not to be bound ,’ or indorse Bills , for any one without Consent , &r*c. 

And that neither of the said parties shall, during this copartnership, 
without the consent of the other, enter into any deed, covenant, bond, or 
judgment, or become bound as bail or surety, or give any note, or accept or 
indorse any bill of exchange for himself and partner, without the consent of 
the other first had and obtained, with or for any person whatsoever. 

Neither Pa7'ty to assign his Hiterest , &c. 

And it is agreed between the said parties, that neither of the said parties 
shall, without the consent of the other, obtained in writing, sell or assign his 
share or interest in the said joint trade, to any person or persons whatso¬ 
ever. 

Principal Clerk to be Receiver of Moneys , &*c. 

That the principal clerk for the time being shall be the general receiver 
of all the money belonging to the said joint trade, and shall thereout pay all 
demands, ordered by the said parties, and shall from time to time pay the 
surplus cash to such banker as the said partners shall nominate. 

Parties to draw quarterly , 6r*c. 

That it shall be lawful for each of them to take out of the cash of the 
joint stock the sum of quarterly, to his own use, the same 

to be charged on account, and neither of them shall take any further sum 
for his own separate use, without the consent of the other in writing; and 
any such further sum, taken with such consent, shall draw interest after the 
rate of per cent., and shall be payable together with the interest 

due, within days after notice in writing given by the other 

of the said parties. 

(84.) 

Shorter Form of Articles of Copartnership. 

Articles of Agreement, Made the day 

of one thousand eight hundred and between 


PARTNERSHIP. 


248 

(the names and residences of the two parties) as follows : The said 

parties above named have agreed to become copartners in business, and by 
these presents do agree to be copartners together under the name or firm of 
in the business of and in the buying, selling, and 

vending all sorts of goods, wares, and merchandise to the said business 
belonging, and to occupy the their copartnership to 

commence on the day of and to continue 

and to that end and purpose the said ( here state the contributions of each of 
the parties) 

to be used and employed in common between them for the support and 
management of the said business, to their mutual benefit and advantage. 
And it is agreed by and between the parties to these presents, that at all 
times during the continuance of their copartnership, they and each of them 
will give their attendance, and do their and each of their best endeavors, 
and to the utmost of their skill and power exert themselves for their joint 
interest, profit, benefit, and advantage, and truly employ, buy, sell, and 
merchandise with their joint stock, and the increase thereof, in the business 
aforesaid. And also that they shall and will at all times during the said 
copartnership bear, pay, and discharge equally between them, all rents and 
other expenses that may be required for the support and management of the 
said business; and that all gains, profit, and increase that shall come, grow, 
or arise from or by means of their said business, shall be divided between 
them (state whether equally , or in what proportions) and 

all loss that shall happen to their said joint business, by ill commodities, bad 
debts, or otherwise, shall be borne and paid between them in the like pro¬ 
portion. 

And it is agreed by and between the said parties, that there shall be had 
and kept at all times during the continuance of their copartnership, perfect, 
just, and true books of account, wherein each of the said copartners shall 
enter and set down, as well all money by them or either of them received, 
paid, laid out, and expended in and about the said business, as also all goods, 
wares, commodities, and merchandise, by them or either of them, bought or 
sold by reason or on account of the said business, and all other matters and 
things whatsoever to the said business and the management thereof in any 
wise belonging; which said books shall be used in common between the 
said copartners, so that either of them may have access thereto, without any 
interruption or hindrance of the other. And also the said copartners, 
once in 

or oftener if necessary, shall make, yield, and render, each to the other, a 
true, just, and perfect inventory and account of all profits and increase by 
them, or either of them, made, and of all losses by them, or either of them, 
sustained; and also all payments, receipts, disbursements, and all other 
things by them made, received, disbursed, acted, done, or suffered in this 
said copartnership and business, and the same account so made shall and 
will clear, adjust, pay, and deliver, each to the other, at the time, their just 
share of the profits so made as aforesaid. 


ARTICLES OF COPARTNERSHIP. 


249 


And the said parties hereby mutually covenant and agree to and with 
each other, that, during the continuance of the said copartnership, neither 
of them shall nor will indorse any note, or otherwise become surety for any 
person or persons whomsoever, without the consent of the other of the said 
copartners. And at the end, or other sooner determination of their copart¬ 
nership, the said copartners, each to the other, shall and will make a true, 
just, and final account of all things relating to their said business, and in all 
things truly adjust the same ; and all and every the stock and stocks, as 
well as the gains and increase thereof, which shall appear to be remaining, 
either in money, goods, wares, fixtures, debts, or otherwise, shall be divided 
between them, in the proportions aforesaid. 

In Witness Whereof, 


(Signatures.) 

( 85 .) 

Certificate of a Limited Partnership with Acknowledgment, 

and Oath. 


This is to Certify, That the undersigned have, pursuant to the pro¬ 
visions of the Statutes of the State of formed a limited partnership, 

under the name or firm of that the general nature of the 

business to be transacted is (describe the business) and that 

the general partner and 

is the special partner and that the said (the special partner) 
hath contributed the sum of dollars, as capital 

towards the common stock, and that the said partnership is to commence 
on the day of and is to terminate on the 

day of 18 

Dated this day of one thousand eight hundred 

and 

(Signatures.) 


County of ss. On the day of 

one thousand eight hundred and before me came 

to be the individuals described in, and who executed the above certificate, 
and they severally acknowledged that they executed the same. 

County of ss. 

the general part?ier named in the above certificate, being duly sworn, 
doth depose and say, that the sum specified in the said certificate to have 
been contributed by the special partner to the common stock has been 
actually and in good faith paid in cash. 

Sworn this day of 18 before me, 


In some of the States, the oath should be made by the 
general partner; and it would always be safe for all the partners, 
general and special, to take the oath, and be included in the 
certificate. 


250 


AKB1TRA TTON. 


CHAPTER XIX. 

ARBITRATION. 


SECTION I. 

OF THE SUBMISSION AND AWARD. 

[By the Submission (or reference) is meant the submission of the question or questions to 
arbitrators.] 

The law favors arbitration in many respects as a peaceable 
and inexpensive mode of settling difficulties. Parties may 
agree to refer a question by an oral agreement, or by a written 
agreement. The form is not essential. But it is always best 
to reduce the agreement to writing, and to express it carefully. 
But parties may, in many of our States, go before a magistrate 
and agree to refer in the manner pointed out by the statute. 
In all of them a case may be taken out of court and submitted 
to referees under an order of court. 

The first essential of an award, without which it has no 
force whatever, is, that it be conformable to the terms of the 
submission. The authority given to the arbitrators should not 
be exceeded; and the precise question submitted to them, and 
neither more nor less, should be answered. Neither can the 
award affect strangers (or those who are not parties to it); and, 
if one part of it is that a stranger shall do some act, it is not 
only of no force as to the stranger, but of no force as to the 
parties if this unauthorized part of the award cannot be taken 
away without affecting the rest of the award. 

Nor can it require that one of the parties should make a 
payment, or do any similar act, to a stranger. But if the 
stranger is mentioned in an award only as agent of one of the 
parties, which he actually is or as trustee, or as in any way 
paying for, or receiving for, one of the parties, this does not 
invalidate the award. And in favor of awards, it has been said 
that this will be supposed, where the contrary is not indicated. 

If the award embrace matters not included in the submis¬ 
sion, it is fatal. If, however, the portion of the award which 



SUBMISSION AND A WARD. 


251 


exceeds the submission can be separated from the rest without 
affecting the merits of the award, it may be rejected, and the 
rest will stand; otherwise the whole is void. If the submis¬ 
sion specify the particulars to which it refers, or if, after 
general words, it make specific exceptions, its words must be 
strictly followed. 

If these words are very general, they will be construed 
liberally, but yet without extending them beyond their fair 
meaning. On the other hand, all questions submitted must be 
decided, unless the submission provides otherwise; and either 
party may object to an award, that it omits the decision of 
some question submitted; but the objection is invalid if it be 
shown that the party objecting himself withheld that question 
from the arbitrators. Nor is it necessary that the award embrace 
all the topics which might be considered within the terms of a 
general submission. It is enough if it pass upon those ques¬ 
tions brought before the arbitrators, and they are so far dis¬ 
tinct and independent that the omission of others leaves no 
uncertainty in the award. If the award does not embrace all 
of the matters within the submission which were brought to 
the notice of the arbitrators, it is altogether void. 

In the next place, an award must be certain ; that is, it must 
be so expressed that no reasonable doubt can be entertained as 
to the meaning of the arbitrators, the effect of the award, or 
the rights and duties of the parties under it. For the very 
purpose of the submission, and the end for which the law 
favors arbitration, is the final settlement of all questions and 
disputes ; and this is inconsistent with uncertainty. 

In the next place, the award must be possible; for an award 
requiring that to be done which cannot be done is senseless and 
useless. But the impossibility which vitiates an award is one 
which belongs to the nature of the thing, and not to the acci 
dental disability of the party at the time. Thus, if he be 
ordered to pay money on a day that is past, this is void; so if 
he be required to give up a deed which he neither has nor may 
expect to have; but if he be directed to pay money, the award 
is good, although he has no money, for it creates a valid debt 
against him. Nor can a party avoid an award on the ground of 


252 


ARBITRA TION. 


an impossibility created by himself, after the award, or indeed 
beforehand, if he created it for the purpose of evading an 
expected award. 

This impossibility may be actual, or it may be that created by 
law; for an award which requires that a party should do what 
the law forbids him to do is void, either in the whole, or else for 
so much as is thus against the law, if that illegal part can be 
severed from the rest. 

An award must be reasonable; if it be of things in them¬ 
selves of no value or advantage to the parties, or out of all 
proportion to the justice and requirements of the case, or if it 
undertake to determine for the parties what they should deter¬ 
mine for themselves, as that the parties should intermarry, it is 
void. 

Lastly, the award must be final and conclusive . This neces¬ 
sity springs also from the very purpose for which the law favors 
arbitration, namely, the settlement and closing of disputes. It 
is not a valid objection to an award, that it is upon a condition, if 
the condition be clear and certain, consistent with the rest of 
the award, in itself reasonable, and such that there could be no 
doubt whether it were performed or not, or what were the 
rights or obligations dependent upon it. 

An award may be open to any or all of these objections 
in part, without being necessarily void in the whole. So much 
of it as is thus faulty is void; but if this can be severed dis¬ 
tinctly from the residue, leaving a substantial, definite, and 
unobjectionable award behind, this may be done, and the 
award then will take effect. It is therefore void in the whole 
because bad in part, only where this part cannot be severed from 
the residue; or where, if it be severed and amended, leaving 
the residue in force, one of the parties will be held to an 
obligation imposed upon him, but deprived of the advantage or 
recompense which it was intended that he should have. Gen¬ 
erally, in the construction of awards, they are favored and 
enforced, wherever this can properly be done. 

If the submission be in the most general terms, and the 
award equally so, covering “ all demands and questions ” between 
the parties, either party may still show that a particular demand 


SUBMISSION AND AWARD. 


253 


either did not exist, or was not known to exist, when the sub¬ 
mission was entered into, or that it was not brought before the 
notice of the arbitrators, or considered by them; and then the 
award will not be permitted to affect this demand. 

If, by an award, money is to be paid in satisfaction of a debt, 
this implies an award of a release on the other side, and makes 
this release a condition to the payment. 

There is no especial form of an award necessary in this coun¬ 
try. If the submission requires that it should be sealed, it must 
be so. And if the submission was made under a statute, or 
under a rule of court, the requirements of the statute or the rule 
should be followed. But even here mere formal inaccuracies 
would seldom be permitted to vitiate the award. 

If the submission contains other directions or conditions, as 
that it should be delivered to the parties in writing, or to each 
of the parties, such directions must be substantially followed. 
Thus, in the latter case, it has been held that it is not enough 
that a copy be delivered to one of the parties on each side, but 
each individual party must have one. 

It may happen, where an award is offered in defence, or as 
the ground of an action, that it is open to no objection whatever 
for anything which it contains or which it omits ; and yet it may 
be set aside for impropriety or irregularity in the conduct of the 
arbitrators, or in the proceedings before them. Awards are thus 
set aside if “procured by corruption or undue means.” This 
rule rests, indeed, on the common principle, that fraud vitiates 
and avoids every transaction. 

So, too, it may well be set -aside if it be apparent on its face 
that the arbitrator has made a material mistake of fact or of law. 
It must, however, be rather a strong case in which the court 
would receive evidence of a mere mistake, either in fact, or in 
law, which did not appear in the award, and was not supposed 
to spring from or indicate corruption. 

Another instance of irregularity is the omission to examine 
witnesses ; or an examination of them when the parties were not 
present, and their absence was for good cause ; or a concealment 
by either of the parties of material circumstances ; for this would 
be fraud. So if the arbitrators, in case of disagreement, were 


ARBITRATION. 


254 

authorized to choose an umpire, but drew lots which of them 
should choose him. But it has been held enough that each 
arbitrator named an umpire, and lots were drawn to decide which 
of these two should be taken, because it might be considered 
that both of these men were agreed upon. And if an umpire 
be appointed by lot, or otherwise irregularly, if the parties agree 
to the appointment, and confirm it expressly, or impliedly by 
attending before him, with a full knowledge of the manner of 
the appointment, this covers the irregularity. 

SECTION II. 

THE REVOCATION OF A SUBMISSION TO ARBITRATORS. 

It is an ancient and well established rule, that either party 
may revoke his submission at any time before the award is made ; 
and by this revocation render the submission wholly ineffectual, 
and of course take from the arbitrators all power of making a 
binding award. And, generally, this power exists until the 
award is made. 

In this country, our courts have always excepted from this 
rule submissions made by order or rule of court; for a kind of 
jurisdiction is held to attach to the arbitrators, and the submis¬ 
sion is quite irrevocable, except for such cases as make it nec¬ 
essarily inoperative. 

There is a strong reason why a submission by order of court, 
or before a magistrate, should be preferred where it can be had, 
from the fact above stated, that the law permits any party who 
finds an award is going against him to revoke his submission or 
reference when he will, before the award is made ; provided the 
award was only by agreement out of court, or not before a mag¬ 
istrate. In some of our States, the statutes authorizing and 
regulating arbitration provide for the revocation of the submis¬ 
sion. 

It should be stated, however, that, as an agreement to sub¬ 
mit is a valid contract, the promise of each party being the con¬ 
sideration for the promise of the other, a revocation of the agree¬ 
ment or of the submission is a breach of the contract, and the 
other party has his damages. And damages would generally 


REVOCA TION OF SUBMISSION TO ARBITRATORS. 255 

include all the expenses the plaintiff has incurred about the 
submission, and all that he has lost by the revocation, in any 
way. 

If either party exercise this power of revocation, he must 
give notice in some way, directly or indirectly, to the other 
party; and until such notice, the revocation is inoperative. 

Bankruptcy or insolvency of either or both parties does not 
necessarily operate as a revocation, unless the terms of the 
agreement to refer, or the provisions of 'the insolvent law, 
required it. But the assignees acquire whatever power of 
revocation the bankrupt or insolvent possessed, and, generally, 
at least, no further power. 

The death of either party before the award is made vacates 
the submission, if made out of court, unless that provides in 
terms for the continuance and procedure of the arbitration, if 
such an event occur. But a submission under a rule of court is 
not revoked or annulled even by the death of a party. So the 
death or refusal or inability of an arbitrator to act would annul a 
submission out of court, unless provided for in the agreement; 
but not one under a rule of court, unless for especial reasons, 
satisfactory to the court, which would make an appointment of 
a substitute, if it saw fit to continue the reference. 

It may be well to add, that, after an award is fully made, 
neither of the parties without the consent of the other, nor 
either nor all of the arbitrators without the consent of all the 
parties, have any further control over it. 

If the submission provides for any method of delivering the 
award, this should be followed. If not, it is common for the 
referees to deliver the award to the prevailing party or his attor¬ 
ney, on payment by him of the fees of arbitration. Then the 
prevailing party looks to the losing party, for the whole, or a 
part, or none of the costs, as the award may determine. 

The award should be sealed, and addressed to all the parties; 
and it should not be opened except in presence of all the parties, 
or of their attorneys, or with the consent of those absent indorsed 
on the award. If the submission is under a rule of court, it 
should be returned to court by the arbitrators, or the counsel 
receiving it, sealed, and opened only in court, or before the 
clerk, or with the written consent of parties. 


256 


ARBITRA TION. 


The submission, or agreement to refer, may be made by 
exchange of Bonds, each party executing and delivering a Bond 
to the other party. 

This would be a formal proceeding. But, as has been already 
said, no especial form is necessary ; and often a very simple one, 
like that below, would suffice. 


( 86 .) 


Simple Agreement to Refer. 


Know all Men, That we, of 

and of do hereby promise and 

agree, to and with each other, to submit, and do hereby submit, all questions 
and claims between us (or any specific question or claim, describing it) to the 
arbitrament and determination of (here name the arbitrators) whose decision 
and award shall be final, binding, and conclusive on us ; (add if there are 
more arbitrators than one, and it is intended that they ?nay choose an U7npire) 
and, in case of disagreement between the said arbitrators, they may choose 
an umpire, whose award shall be final and conclusive ; (or add, if there be 
more than two arbitrators) and, in case of disagreement, the decision and 
award of a majority of said arbitrators shall be final and conclusive. 

In 'Witness Whereof, &c. 


( 87 .) 


(Signatures.) 


Arbitration Bond. One or more Arbitrators. 


Know all Men by these Presents, That I, (one of the parties) 

am held and firmly bound unto (the other party) in the sum 

cf dollars, lawful money of the United States of America, 

to be paid to the said (the other party) executors, administrators, 

or assigns; for which payment, well and truly to be made, I hereby bind 
myself, my heirs, executors, and administrators, firmly by these presents. 

Sealed with my seal. Dated the day of one 

thousand eight hundred and 

The Condition of the above Obligation is such, That if the above 
bounden shall well and truly submit to the 

decision of (the referee) named, selected, and chosen 

arbitrator as well by and on the part and behalf of, the said 

as of the said between whom a controversy 

exists, to hear all the proofs and allegations of the parties of and concerning 

(here set forth the claims or questions referred) 
and all matters relating thereto, and that the 
award of the said arbitrator be made in writing, subscribed by him (or them) 
and attested by a subscribing witness, ready to be delivered to the said 
parties on or before the day of next. 


A PRIVATE CARRIER. 


257 


But before proceeding to take any testimony therein, the arbitrator shall be 
sworn, “faithfully and fairly to hear and examine the matters in controversy 
between the parties to these presents, and to make a just award according to 
the best of his (or their) understanding.” And the said parties to these 
presents do hereby agree, that judgment in the case (in question) 

shall be rendered upon the award which may be made pursuant 
to this submission, to the end that all matters in controversy in that behalf, 
between them, shall be finally concluded. Then the above obligation to be 
void, otherwise to remain in full force and virtue. 

( Signature.) (Seal.) 

Signed, Sealed ’ and Delivered in Prese?ice of 

[To make the contract complete, the other party should execute and 
deliver a counterpart of this Bond.] 

( 88 .) 

Award of Arbitrators. 

To all to whom these Presents shall come, We (names of the arbi¬ 
trators), to whom was submitted as arbitrators the matters in controversy 
existing between as by the condition of their respective 

bonds of submission, executed by the said parties respectively, each unto 
the other, and bearing date the day of one thousand 

eight hundred and more fully appears. 

Now, therefore, know ye, That we the arbitrators 

mentioned in the said bonds having been first duly sworn according to law, 
and having heard the proofs and allegations of the parties, and examined the 
matters in controversy by them submitted, do make this award in writing; 
that is to say, the said (here follows the award) 

In Witness Whereof, have hereunto subscribed these presents, 

this day of one thousand eight hundred and 

(Signatures.) 

hi Presence of 


CHAPTER XX. 

THE CARRIAGE OF GOODS AND PASSENGERS. 

SECTION I. 

A PRIVATE CARRIER. 

One who carries goods for another is either a private carrier 
or a common carrier. 

A private carrier is one who carries for others once, or some¬ 
times, but who does not pursue the business of carrying as his 

17 




258 THE CARRIAGE OF GOODS AND PASSENGERS. 

usual and professed occupation. The contract between him and 
the owner of the goods which he carries is one of service, and 
is governed by the ordinary rules of law. Each party is bound 
to perform his share of the contract. Such a carrier must 
receive, care for, carry, and deliver the goods, in such wise as 
he bargains to do. 

If he carries the goods for hire, whether actually paid or due, 
he is bound to use ordinary diligence and care; by which the 
law means such care as a man of ordinary capacity would take 
of his own property under similar circumstances. If any loss or 
injury occur to the goods while in his charge, from the want of 
such care or diligence on his part, he is responsible. But if the 
loss be chargeable as much to the fault of the owner as of the 
carrier, he is not liable. The owner must show the want 
of care or diligence on the part of the private carrier, to 
make him liable; but slight evidence tending that way would 
suffice to throw upon him the burden of accounting satisfactorily 
for the loss. And if there is such negligence on the part of the 
carrier, or of a servant for whom he is responsible, the carrier 
is liable, although the loss be caused primarily by a defect in the 
thing carried. 

If he carries the goods without any compensation, paid or 
promised, he is, in the language of the law, a gratuitous bailee, 
or mandatary: he is now bound only to slight care; which is 
such care as every person, not insane or fatuous, would take of 
his own property. For the want of this care, which would be 
gross negligence, he is responsible, but not for ordinary negli¬ 
gence. 

We sum up what may be said of the private carrier in the 
remark, that the general rules which regulate contracts and 
mutual obligations apply to the duties and the rights of a pri¬ 
vate carrier , with little or no qualification. But it is otherwise 
with a common carrier. 


SECTION II. 

THE COMMON CARRIER. 

The law in relation to the rights, the duties, and the respon¬ 
sibilities of a common carrier is quite peculiar. The reasons for 


THE COMMON CARRIER. 


259 


it are discernible, but it rests mainly upon established usage and 
custom. And, as these usages have changed considerably in 
modern times, this law has undergone important modifications. 

He is a common carrier “who undertakes, for hire, to trans¬ 
port the goods of such as choose to employ him from some 
known and definite place or places to other known and definite 
place or places.” He is one who undertakes the carriage of 
goods as a business; and it is mainly this which distinguishes 
him from the private carrier. 

The rights and responsibilities of the common carrier may 
be briefly stated thus: He is bound to take the goods of all who 
offer, if he be a carrier of goods, and the persons of all who offer, 
if he be a carrier of passengers; and to take due care and make 
due transport and delivery of them. He has a lien on the goods 
which he carries, and on the baggage of passengers, for his com¬ 
pensation. He is liable for all loss or injury to the goods under 
his charge, although wholly free from negligence, unless the 
loss happens from the act of God, or from the public enemy. 
These three rules will be considered in the next section. 

The important thing to be remembered is, that a private 
carrier is not liable for injury to persons, or loss of or injury to 
goods, without fault or negligence on his part; but a common 
carrier is liable, without any fault or negligence on his part. 

Truckmen or draymen, porters, and others who undertake the 
carriage of goods for all applicants from one city or town to 
another, or from one part of a city to another, are chargeable 
as common carriers. So, proprietors of stage-coaches are charge¬ 
able as common carriers of passengers, and of the baggage of 
passengers; or the baggage of others, if they so advertise them¬ 
selves. So are hackney-coachmen within their accustomed 
range. 

If drivers of stages, or omnibuses, commonly carry and 
receive pay for goods or parcels which are not the baggage of 
passengers, and are held out or advertised, or generally known, 
as so carrying them, they are common carriers of goods, and the 
proprietors are liable for the loss of such parcels, although 
neither they nor the drivers were in fault. But if there is no 
such habit or usage, and the driver receives such a parcel to be 


260 the carriage of goods and passengers. 

carried somewhere, and is paid for it, the driver carries it as a 
private carrier, and not as a common carrier, and is chargeable 
only for negligence or fault. And if the line of carriages is 
established for passengers, and the driver does not account for 
what is paid him for occasional parcels, but takes it as his own 
perquisite, the proprietors are not answerable even for the 
driver’s fault or negligence, unless circumstances in some way 
bring the fault home to them. 

In this country, in recent times, the business of carrying 
goods and passengers is almost monopolized by what are called 
expressmen, by railroads, or by lines of steam-packets along our 
coasts, or upon our navigable streams or lakes. All these are 
undoubtedly common carriers; and although their peculiar method 
of carrying on this business is new, and will require from us 
especial consideration in another chapter, there can be no doubt 
of their being, to all intents and purposes, common carriers. 

Ordinary sailing vessels are sometimes said to be common 
carriers. We should be disposed to restrict this term, however, 
to regular packets; or, at most, to call by this name general 
freighting ships. It is not, however, necessary to consider this 
question, as water-borne goods are now almost always carried 
under bills of lading, which determine the relations and respect¬ 
ive rights of the parties; and these we shall consider in our 
chapter on the Law of Shipping. 

The boatmen on our rivers and canals are common carriers, 
and ferrymen are common carriers of passengers by their office, 
and may become common carriers of goods by taking up that 
business. A steamboat usually employed as a carrier may do 
something else, as tow a vessel out of a harbor, or the like; and 
the character of common carrier does not attach to this special 
employment, and carry with it its severe liabilities. Therefore, 
for a loss occurring to a ship in her charge while so employed, 
the owner of the steamer is not liable without negligence on his 
part, or on the part of those whom he employs. 

The same person may be a common carrier, and also hold 
other offices or relations. He may be a warehouseman, a 
wharfinger, or a forwarding merchant. The peculiar liabilities 
of the common carrier do not attach to either of these offices 


OBLIGATION OF THE COMMON CARRIER. 


261 


or employments. Thus, a warehouseman is liable for the loss 
of the goods which he takes for storage, only in case of his own 
negligence; he is not, as a common carrier is said to be, an 
insurer of the goods. The question then arises, when the lia 
bility of such a person is that of a warehouseman, and when it 
is that of a carrier. 

If a carrier receives goods to be stored until he can carry 
them,—a canal-boatman, for example,—or if, at the end of the 
journey, he stores them for a time for the safety of the goods 
or the convenience of the owner, while thus stored he is liable 
only as warehouseman. But if he puts them into his store or 
office only for a short time, and for his own convenience, either 
at the beginning or end of the transit (or journey), they are in 
his hands as carrier. 

Where these relations seem to unite and mingle in one per¬ 
son, it may be said to be the general rule, that, wherever the 
deposit, in whatever place or building, is secondary and subor¬ 
dinate to the carriage of the goods, which is, therefore, the chief 
thing, the party taking the goods is a carrier; and otherwise a 
depositary only of some kind. If, therefore, goods are deliv¬ 
ered to a carrier, or at his depot or receiving-room, with direc¬ 
tions not to carry them until further orders, he is only a 
depositary, and not a carrier, until those orders are received; 
but when they are received he becomes a carrier; and if the 
goods are afterwards lost or injured before their removal, he is 
liable as a common carrier without negligence or fault on his 
part. 

SECTION III. 

THE OBLIGATION OF THE COMMON CARRIER TO RECEIVE AND CARRY GOODS 

OR PASSENGERS. 

He cannot refuse to receive and carry goods offered, with¬ 
out good cause; for, by his openly announcing himself in any 
way as engaged in this business, he makes an offer to the public 
which becomes a kind of contract as to any one who accepts 
it. He may demand his compensation, however, and, if it be 
refused, he may refuse to carry the goods; nor is he bound to 
carry them if security be offered to him, but not the money. 
But if the freight-money be not demanded, the owner of the 


262 THE CARRIAGE OF GOODS AND PASSENGERS. 


goods, if he is able, ready, and willing to pay it, has all his 
rights although he does not make a formal tender of the money. 
A carrier may refuse if his means of carriage are already fully 
employed. But, in a case where a railway company, being com 
mon carriers, had issued excursion-tickets for a journey, it was 
held that they were not excused from carrying passengers 
according to their contract, upon the ground that there was no 
room for them in their conveyance; and that, in order to avail 
themselves of this answer, they should make their contract condh 
tional upon there being room. If the common carrier cannot 
carry the goods without danger to them, or to himself or other 
goods, or without extraordinary inconvenience, or if they are 
not such goods as it is his regular business to carry, he is 
excused for not carrying them. He is always entitled to his 
usual charge, but not to extraordinary compensation, unless for 
extraordinary service. 

The common carrier of goods is bound to receive them in a 
suitable way, and at suitable times and places. If he has an 
office or station, he must have proper persons there, and proper 
means of security. During the transit, and at all stoppings 
places, due care must be taken of all goods, and that means the 
kind and measure of care appropriate for goods of that descrip¬ 
tion. If he have notice, by writing on the article or otherwise 
of the need of peculiar care,—as, “ Glass, with great care,” or 
“This side uppermost,” or “To be kept dry,”—he is bound to 
comply with such directions, supposing them not to impose 
unnecessary care or labor. 

If he carry passengers he must receive all who offer, unless he 
has some special and sufficient reason for refusing. 

In a case tried before the Supreme Judicial Court of Massa¬ 
chusetts, it was held that if an inn-keeper, who has frequently 
entered a railroad depot and annoyed passengers by soliciting 
them to go to his inn, receives notice from the superintendent 
of the depot that he must do so no more, and he nevertheless 
repeatedly enters the depot for the same purpose, and after¬ 
wards obtains a ticket for a passage in the cars, with an actual 
intention of entering the cars as a passenger, and goes into the 
depot on his way to the cars, and the superintendent, believing 


OBLIGATION OF THE COMMON CARRIER. 


263 

that he has entered the depot to solicit passengers, orders him 
to go out, and he does not exhibit his ticket, nor give notice of 
his real intention, but presses forward towards the cars, and the 
superintendent and his assistants therefore forcibly remove him 
from the depot, using no more force than is necessary for that 
purpose, such removal is justifiable, and not an indictable assault 
and battery. 

A common carrier is bound to carry his passengers over the 
whole route, and at a proper speed, or supply proper means of 
transport; to demand only a reasonable or usual compensation ; 
to notify his passengers of any peculiar dangers; to treat all 
alike, unless there be actual and sufficient reason for the dis¬ 
tinction, as in the filthy appearance, dangerous condition, or 
misconduct of a passenger; and to behave to all with civility 
and decorum. 

He must also have proper carriages, and keep them in good 
condition, and not overload them; and suitable horses and 
drivers; stop at the usual places, with proper intervals for rest 
or food ; take the proper route; and drive at proper speed; and 
leave the passengers at the usual stopping-places, or wherever 
he agrees to. In none of these things can he depart from 
what is usual and proper at his own pleasure. And if by any 
breach of these duties a passenger is injured, the carrier is 
responsible. So if he puts his passengers in peril, and one of 
them be hurt by an effort to escape, as in jumping off, it is no 
defence for the carrier to show that he would have been safe if 
he had remained. 

In one case it was held that a common carrier who had 
received a pickpocket as a passenger on board his vessel, and 
taken his fare, could not put him on shore so long as he was not 
guilty of any impropriety. But this may be doubted. The 
common carrier must certainly employ competent and well- 
behaved persons for all duties, and for failure in any of the par¬ 
ticulars of his duties and obligations, he is responsible not only 
to the extent of any damage caused thereby, but also, in many 
cases, for pain and injury to the feelings. He is also bound to 
deliver to each passenger all his baggage at the end of his jour* 
ney, and is held liable if he delivers it to a wrong party on a 
forged order, and without personal default. 


264 THE CARRIAGE OF GOODS AND PASSENGERS. 

Lastly, he must make due delivery of the goods at the 
proper time, in the proper way, and at the proper place, and 
to the proper person; and this person should be some one 
who was authorized by the owner or sender to receive the 
goods. 

If a party authorized to receive the goods refuse, or is 
unable to do so, the carrier must keep them for the owner, and 
with due care ; but now under the liability of a warehouseman, 
and not of a carrier; that is, he is now liable only for fault of 
some kind. 

So the carrier must keep the goods for the owner, if he has 
good reason to believe that the consignee is dishonest, and will 
defraud the owner of his property. As to the time when goods 
should be delivered, it must be within the proper hours for busi¬ 
ness, when they can be suitably stored; or if the goods are deliv¬ 
ered to the sender himself, or at his house, then at some suitable 
and convenient hour. 

There must be no unnecessary delay, and the goods must 
be delivered as soon after a detention as may be with due 
diligence. 

As to the way and the place at which the goods should be 
delivered, much must depend upon the nature of the goods, 
and much also upon the usage in regard to them, if such usage 
exists. 

The goods should be so left, and with such notice, as to 
secure the early, convenient, and safe reception of them by the 
person entitled to have them. Something also must depend on 
this point, on the mode of conveyance. A man may carry a 
parcel into the house and deliver it to the owner or his servant; 
a wagon or cart can go to the gate, or into the yard, and there 
deliver what it carries. A vessel can go to one wharf or another, 
and is bound to go to that which is reasonably convenient to the 
consignee, or to one that was agreed upon ; but a vessel is not 
always bound to comply with requirements of the consignee as 
to the very wharf the goods should be left at, but may leave the 
goods at any safe, convenient, and accessible wharf at which 
such goods are usually left. 

Where the goods are not delivered to the owner personally. 


OBLIGA TION OF THE COMMON CARRIER . 265 

or to his agent, immediate notice should be given to the owner. 
The carrier is generally obliged to give notice of the delivery 
of goods, and if the owner has in any way designated how the 
goods may be delivered to himself, he is bound to obey this 
direction. The notice must be prompt and distinct. And if 
the goods are delivered at an unsuitable or unauthorized place, 
no notice will make this a good delivery. 

Railroads terminate at their station, and although goods 
might be sent by wagons to the house or store of consignees, 
this is not usually done, as it is considered that the railroad 
carrier has finished his transit at his own terminus. Usually, 
the consignee of goods sent by railroad has notice from the 
consignor when to expect them; and this is so common, that it 
is seldom necessary, in fact, for the agents of the railroad to 
give notice to the consignee. But this should be given where 
it is necessary; and should be given as promptly, directly, and 
specifically as may be necessary for the purpose of the notice. 

A railroad company may be compared to owners of ships in 
this respect, that neither can take the cars or the ships farther 
than the station or the wharf, and therefore may deliver the 
goods there. But a carrier by water is bound to give notice 
that the goods are on the wharf, and is not exonerated as carrier 
until he gives such notice; whereas, a railroad company is not 
bound to give notice. 

It may happen that some third party may claim the goods 
under a title adverse to that of the consignor or consignee. If 
the carrier refuse to deliver them to this third party, and it 
turns out that the claimant had a legal right to demand them, 
the carrier would be liable in damages to him. But the carrier 
may and should demand full and clear evidence of the claimant’s 
title; and if the evidence be not satisfactory, he may demand 
security and indemnity. If the evidence or the indemnity be 
withheld, he certainly should not be held answerable for any¬ 
thing beyond that amount which the goods themselves would 
satisfy, for he is in no fault. If he delivers the goods to such 
claimant, proof that the claimant had good title is an adequate 
defence against any suit by the consignor or consignee for non* 
delivery. 


266 THE carriage of goods and passengers. 


SECTION IV. 

THE LIEN OF THE COMMON CARRIER. 

The legal meaning of this word, as we have said before, 
when we have had occasion to use the word in preceding chap¬ 
ters, is the right of holding or detaining property until some 
charge against it, or some claim upon the owner on account of 
it is satisfied. 

The common carrier has this right against all the goods he 
carries, for his compensation. While he holds them for this 
purpose, he is not liable for loss or injury to them as a common 
carrier; that is, not unless the injury happen from his own 
fault. 

He may not only hold the goods for his compensation, but 
may recover this out of them, by any of the usual means in 
which a lien upon personal chattels is made productive. That 
is, he holds them just as if they were pledged to him by the 
owner as a security for the debt. Therefore, if the debt be not 
paid in a reasonable time after it is due and demanded, the 
carrier may have a decree of a court of equity for their sale; 
or may sell them himself at auction, retaining his pay from the 
proceeds, and paying over the remainder. But to make this 
course justifiable and safe, the carrier must wait a reasonable 
time, and give full notice of his intention, so that the owner 
may have a convenient opportunity to redeem the goods; and 
there must be proper advertisement of the sale, and every usual 
precaution taken to insure a favorable sale; and the carrier 
must not himself buy the goods, and must act in all respects 
with entire honesty. 

SECTION V. 

THE LIABILITY OF THE COMMON CARRIER. 

This is perfectly well established as a rule of law, although 
it is very exceptional and peculiar. It is sometimes said to 
arise from the public carrier being a kind of public officer. But 
the true reason is the confidence which is necessarily reposed in 
him, the power he has over the goods intrusted to him, the ease 
with which he may defraud the owner of them, and yet make it 


LIABILITY OF THE COMMON CARRIER. 


267 

appear that he was not in fault, and the difficulty which the 
owner might have in making out proof of his default This 
reason it is important to remember, because it helps us to con¬ 
strue and apply the rules of law on this subject Thus, the 
rule is that the common carrier is liable for any loss or injury to 
goods under his charge, unless it be caused by the act of God, 
or by the public enemy. The rule is intended to hold the com¬ 
mon carrier responsible wherever it was possible that he caused 
the loss, either by negligence or design. 

Hence, the act of God means some act in which neither the 
carrier himself, nor any other man, had any direct and immediate 
agency. If, for example, a house in which the goods are at 
night is struck by lightning, or blown over by a tempest, or 
washed away by inundation, the carrier is not liable. This is an 
act of God, although man’s agency interferes in causing the 
loss; for without that agency, the goods would not have been 
there. But no man could have directly caused the loss. On 
the other hand, if the building was set on fire by an incendiary 
at midnight, and the rapid spread of the flames made it 
absolutely impossible to rescue the goods, this might be an 
inevitable accident if the carrier were wholly innocent, but it 
would also be possible that the incendiary was in collusion with 
the carrier for the purpose of concealing his theft; and there¬ 
fore the carrier would be liable for such a loss, however 
innocent. 

As a general rule, the common carrier is always liable for 
loss by fire, unless it is caused by lightning, an accidental fire 
not being considered an act of God, or a peril of the sea; and 
this rule has been applied to steamboats and other vessels. So, 
it may be true that after the lightning, the tempest, or inunda¬ 
tion, the carrier was negligent, and so lost the goods which 
might have been saved by proper efforts, or that he took the 
opportunity to steal them. If this could be shown, the carrier 
would, of course, be liable; but the law will not suppose this 
without proof, if the first and main cause were such that the 
carrier could not have been guilty in respect to it. So, a com¬ 
mon carrier would be liable for a loss caused by a robbery, 
however sudden, unexpected, and irresistible, or by a theft, 


268 THE CARRIAGE OF GOODS AND PASSENGERS. 


however wise and full his precautions, and however subtle and 
ingenious the theft, although either of these might seem to be 
unavoidable by any means of safety which it would be at all 
reasonable to require. 

The general principles of agency extend to common carriers, 
and make them liable for the acts of their agents, done while in 
the discharge of the agency or employment. So, the knowledge 
of his agent is the knowledge of the carrier, if the agent be 
authorized expressly, or by the nature of his employment, to 
receive this notice or knowledge. But an agent for a common 
carrier may act for himself,—as a stage-coachman in carrying 
parcels, for which he is paid personally and does not account 
with his employer,—and then the employer, as we have said, is 
not liable, unless the owner of the goods believed the stage- 
coachman carried the goods for his employer, and was justified 
by the facts and apparent circumstances in so believing. 

A carrier may be liable beyond his own route. It is very 
common for carriers, who share between them the parts of a 
long route, to unite in the business and the profits, and then all 
are liable for a loss on any part of the route. 

If they are not so united in fact, but say they are so, or say 
what indicates that they are so, they justify a sender in sup¬ 
posing they are united, and then they are equally liable. 

If a carrier takes goods to carry only as far as he goes, and 
then engages to send them forward by another carrier, he is 
liable as carrier to the end of his own route; he is liable also if 
he neglects to send the goods on; but he is not liable for what 
may happen to them afterwards. 

SECTION VI. 

THE CARRIER OF PASSENGERS. 

The carriers of passengers are under a more limited liability 
than the carriers of goods. This is now well settled. The 
reason is, that they have not the same control over passengers 
as over goods; cannot fasten them down, and use other means 
of securing them. But while the liability of the carrier of 
passengers is thus mitigated, it is still stringent and extreme. 


NOTICE BY CARRIER RESPECTING LIABILITY. 269 

No proof of care will excuse the carrier if he loses goods com¬ 
mitted to him. But proof of the utmost care will excuse him 
for injury done to passengers; for the carrier of passengers is 
liable for injury to them, unless he can show that he took all 
possible care,—giving always a reasonable construction to this 
phrase; and in the case of railroad companies there is authority 
for using the words in almost their literal meaning; that is, for 
holding them liable for all injury to passengers which could have 
been possibly avoided. 

SECTION VII. 

A NOTICE BY THE CARRIER, RESPECTING HIS LIABILITY. 

The common carrier has a right to make a special agree¬ 
ment with the senders of goods, which shall materially modify, 
or even wholly prevent, his liability for accidental loss or injury 
to the goods. 

The question is, What constitutes such a bargain ? A mere 
notice that the carrier is not responsible, or his refusal to be 
responsible, although brought home to the knowledge of the 
other party, does not necessarily constitute an agreement. The 
reason is this. The sender has a right to insist upon sending 
his goods, and the passenger has a right to insist upon going 
himself with customary baggage, leaving the carrier to his 
legal responsibility; and the carrier is bound to take them on 
these terms. If, therefore, the sender or the passenger, after 
receiving such notice, only sends or goes in silence, and with¬ 
out expressing any assent, especially if the notice be given at 
such time, or under such circumstances, as would make it 
inconvenient for the sender not to send, or for the passenger 
not to go, then the law will not presume from his sending or 
going an assent to the carrier’s terms. 

But the assent may be expressed by words, or made mani¬ 
fest by acts; and it is in each case a question of evidence for 
the jury whether there was such an agreement. 

But a notice by the carrier, which only limits and defines 
his liability to a reasonable extent, without taking it away, as 
one which states what kind of goods he will carry, and what he 
will not; or to what amount only he will be liable for passen- 


270 THE CARRIAGE OF GOODS AND PASSENGERS. 

gers’ baggage, without special notice; or what information he 
will require, if certain articles, as jewels or gold, are carried; 
or what increased rates must be paid for such things,—any 
notice of this kind, if in itself reasonable and just, will bind 
the party receiving it. 

No party will be affected by any notice,—neither the carrier, 
nor a sender of goods, nor a passenger,—unless a knowledge 
of it can be brought home to him. In a case in Pennsylvania, 
where the notice was in the English language, and the passenger 
was a German, who did not understand English, it was held 
that the carrier must prove that the passenger had actual 
knowledge of the limitation in the notice. 

But the knowledge may be brought home to him by indirect 
evidence. As by showing that it was stated on a receipt given 
to him, or on a ticket sold him, or in a newspaper which he read, 
or even that it was a matter of usage, and generally known. 
This question is one of fact, which the jury will determine upon 
all the evidence, under the direction of the court. And if the 
notice is ambiguous, they will be directed to give it the mean¬ 
ing which is against the carrier, because it was his business to 
make it plain and certain. 

Any fraud towards the carrier, as a fraudulent disregard of 
a notice, or an effort to cast on him a responsibility he is not 
obliged to assume, or to make his liability seem to be greater 
than it really is, will extinguish the liability of the carrier so 
far as it is affected by such a fraud. 

If a carrier gives notice which he is authorized to give, the 
party receiving it is bound by it, and the carrier is under no 
obligation to make a special inquiry or investigation to see that 
the notice is complied with, but may assume that this is done. 

It should, however, be remarked that such notice affects the 
liability of the common carrier only so far as it is peculiar to 
him, that is, his liability for a loss which occurs without his 
agency or fault; for he is just as liable as he would be without 
any notice, for a loss or injury caused by his own negligence or 
default. 

Perhaps a common carrier might make a valid bargain which 
would protect him against every thing but his own wilful or 


CARRIER'S LIABILITY FOR GOODS OF PASSENGERS. 271 

fraudulent misconduct. But no bargain could be made to pro¬ 
tect him against this. 

SECTION VIII. 

THE CARRIER’S LIABILITY FOR GOODS CARRIED BY PASSENGERS. 

A carrier of goods knows what goods, or rather what 
parcels and packages, he receives and is responsible for. A 
carrier of passengers is responsible for the goods they carry 
with them as baggage ; what that is, the carrier does not always 
know; and he is responsible only to the extent of what might 
be fairly and naturally carried as baggage. This must always 
be a question of fact, to be settled as such by the jury, upon 
all the evidence, and under the direction of the court. But 
there can be no precise and definite standard. A traveller on 
a long journey needs more money and more baggage than on a 
short one; one going to some places and for some purposes 
needs more than one going to other places or for other pur¬ 
poses. 

Thus in New York it was decided that baggage does not 
properly include money in a trunk, or any articles usually 
carried about the person. And in another New York case, it 
was held that, where the baggage of a passenger consists of an 
ordinary travelling-trunk, in which there is a large sum of 
money, such money is not considered as included under the 
term baggage , so as to render the carrier responsible for it. 
But generally a passenger may carry as baggage, money not 
exceeding an amount ordinarily carried for travelling-expenses. 
So in Massachusetts it was held that common carriers are 
responsible for money bond fide included in the baggage of a 
passenger, for travelling-expenses and personal use, to an 
amount not exceeding what a prudent person would deem 
proper and necessary for the purpose. 

In Pennsylvania, carriers have been held responsible for 
ladies’ trunks containing apparel and jewels. And in Illinois, 
a common carrier of passengers has been held liable for the 
loss of a pocket-pistol, and a pair of duelling-pistols, contained 
in the carpet-bag of a passenger, which was stolen out of the 
possession of the carrier. But in Tennessee, it has been held 


272 THE CARRIAGE OF GOODS AND PASSENGERS. 

that “a silver watch, worth about thirty-five dollars, also 
medicines, handcuffs, locks, &c., worth about twenty dollars,” 
were not included in the term baggage, and that the carrier was 
not responsible for their loss. In Ohio, it has been held that a 
gold watch, of the value of ninety-five dollars, was a part of the 
traveller’s baggage, and his trunk a proper place to carry it in. 
In another New York case it has been held that the owners of 
steamboats were liable as common carriers for the baggage of 
passengers ; but, to subject them to damages for loss thereof, 
it must be strictly baggage; that is, such articles of necessity 
and personal convenience as are usually carried by travelers. 
And it was accordingly held, in that case, that the carrier was 
not liable for the loss of a trunk containing valuable merchan¬ 
dise and nothing else, although it did not appear that the plain¬ 
tiff had any other trunk with him. But in a case in Pennsylva¬ 
nia, where the plaintiff was a carpenter moving to the State of 
Ohio, and his trunk contained carpenters’ tools to the value of 
fifty-five dollars, which the jury found to be the reasonable 
tools of a carpenter, it was held that he was entitled to recover 
for them as baggage. 

There is some diversity, and perhaps some uncertainty, in 
the application of the rule; but the rule itself is well settled, 
and a reasonable construction and application of it must always 
be made; and, for this purpose, the passenger himself, and all 
the circumstances of the case, must be considered. 

The purpose of the rule is to prevent the carrier from 
becoming liable by the fraud of the passenger, or by conduct 
which would have the effect of fraud; for this would be the 
case if a passenger should carry merchandise by way of baggage, 
and thus make the carrier of passengers a carrier of goods 
without knowing it and without being paid for it. 

Generally, a common carrier of passengers, by stage, packet, 
steamer, or cars, carries the moderate and reasonable baggage 
of a passenger, without being paid specifically for it. But the 
law considers a payment for this so far included in the payment 
of the fare, as to form a sufficient ground for the carrier’s 
liability to the extent above stated. 

The carrier is only liable for the goods or baggage delivered 


CARRIER'S LIABILITY FOR GOODS OF PASSENGERS. 273 

to him and placed under his care. Hence, if a sender of goods 
send his own servant with them, and intrust them to him and 
not to the carrier, the carrier is not responsible. So, if a pas¬ 
senger keeps his baggage, or any part of it, on his person, or in 
his own hands, or within his own sight and immediate control, 
instead of delivering it to the carrier or his servants, the carrier 
is not liable, as carrier , for any loss or injury which may happen 
to it; that is, not without actual default in the matter. Thus, 
in an action brought in New York to charge a railroad company, 
as common carriers, for the loss of an overcoat belonging to a 
passenger, it appeared that the coat was not delivered to the 
defendants, but that the passenger, having placed it on the seat 
of the car in which he sat, forgot to take it with him when he 
left, and it was afterwards stolen ; and it was held that the 
defendants were not liable. But if the baggage of a passenger 
is delivered to a common carrier, or his servant, he is liable for 
it in the same way, and to the same extent, as he is for goods 
which he carries. 

In this country the rules of evidence permit the traveller to 
maintain his action against the carrier by proving, by his own- 
testimony, the contents of a lost trunk or box, and their value. 
And the testimony of the wife of the owner is similarly admissi¬ 
ble. But it is always limited to such things—in quantity, quality, 
kind, and value—as might reasonably be supposed to be carried 
in such a trunk or valise. The rule, with this limitation, seems 
reasonable and safe, and is quite generally adopted. In Massa¬ 
chusetts it was distinctly denied by the Supreme Court, but was 
afterwards established by statute. 

The common carrier of goods or of passengers is liable to 
third parties for any injury done to them by the negligence or 
default of the carrier, or of his servants. And it would seem 
that he is liable even for the wilful wrong-doing of his servants, 
if it was committed while in his employ, and in the management 
of the conveyance under his control, although the wrong was 
done in direct opposition to his express commands. So he is 
for injury to property by the wayside, caused by his fault. But 
the negligence of the party suffering the injury, if it was mate¬ 
rial and contributed to the injury, is a good defence for the 
carrier, unless malice on the carrier’s part can be shown. 

18 


274 IHE CARRIAGE OF GOODS AND PASSENGERS. 


Where the party injured is in fault, the common carrier has 
still been held liable, if that fault was made possible and injurio*us 
through the fault of the carrier. If passengers are carried 
gratuitously, that is, without pay, the common carrier is still 
liable for injury caused by his negligence. 

Whether a railroad company is responsible for fire set to 
buildings or property along the road, without negligence on its 
part, has been much considered in this country. In some of 
our States they are made so liable by statute provision. And 
this fact, together with the general principles of liability for 
injury done, would seem to lead to the conclusion that they are 
not liable, unless in fault, or unless made so by statute. 

* 

( 89 .) 

.Steam Packet Company. 

Marks and Numbers. 

Received from. 

the following articles, being marked and numbered 
as in the margin, in apparent good order, the con¬ 
tents and value unknown, 

to be transported from to on 

one of the company’s steamers, and to be delivered 
on their wharf in , in like good order and 

condition, the dangers of the sea, of fire on board or 
on wharf, collision, and all other accidents excepted. 

Dated at , £ 

jg j For the company. 

The following form will show the terms and conditions on 
which our express companies carry their freight. This paper, 
given and received, constitutes a contract. 

( 90 .) 

Duplicate. 

.Express Company. 

FAST FREIGHT LINE. 

18 

Received from 

the following packages, in apparent good 
order, contents and value unknown: 




FORMS OF COMMON CARRIER'S RECEIPTS. 


275 


.Express Company. 

Advanced Charges, $ 


RATES. 

D’ble 1 st Class cts. per 100 ibs. 
1st Class cents per 100 lbs. 

2d Class cents per 100 lbs. 

3d Class cents per 100 lbs. 


Marked and numbered as in the margin, 
to be forwarded by railroad and delivered at 
upon payment of freight therefor, 
as noted in the margin, subject to the condi¬ 
tions and rules on the back hereof, and 
those of the several railroads over which 
the property is transported, which consti¬ 
tute a part of this contract. 


4th Class cents per 100 lbs. 
As per Classification on back. 


Agent. 


On the back of this receipt is a minute and very full classi¬ 
fication of all articles likely to be offered for transportation, 
followed by the 

Conditions and Rules. 

The destination, name of the consignee, and weight of all articles of 
freight, must be plainly and distinctly marked, or no responsibility will be 
taken for their miscarriage or loss ; and when designed to be forwarded, aftei 
transportation on the route, a written order must be given, with the particu¬ 
lar line of conveyance marked on the goods, if any such be preferred 01 
desired. 

The companies will not hold themselves liable for the safe carriage or 
custody of any articles of freight, unless receipted for by an authorized agent; 
and no agent of the line is authorized to receive, or agree to transport, any 
freight, which is not thus receipted for. 

No responsibility will be admitted, under any circumstances, to a greater 
amount upon any single article of freight than $200, unless upon notice given 
of such amount, and a special agreement therefor. Specie, drafts, bank- 
bills, and other articles of great intrinsic or representative value, will only 
be taken upon a representation of their value, and by a special agreement 
assented to by the superintendent of the receiving road. 

The companies will not hold themselves liable at all for injuries to any 
articles of freight during the course of transportation, arising from the 
weather, or accidental delays, or natural tendency to decay. Nor will their 
guaranty of special despatch cover cases of unavoidable or extraordinary 
casualties, or storms, or delays occasioned by low water and ice ; and may be 
stored at the risk and expense of the owner. Nor will they hold themselves 
liable, as common carriers, for such articles, after their arrival at their 
place of destination at the company’s warehouses or depots. 

Carriages and sleighs, eggs, furniture, looking-glasses, glass and crockery 



HOTEL KEEPERS , INNKEEPERS , ETC. 


276 

ware, machinery, mineral acids, piano-fortes, stoves and castings, sweet 
potatoes, wrought marble, all liquids put up in glass or earthen ware, fruit, 
and live animals, will only be taken at the owner’s risk of fracture or injury 
during the course of transportation, loading and unloading, unless specially 
agreed to the contrary. 

Gunpowder, friction matches, and like combustibles, will not be received 
on any terms; and all persons procuring the reception of such freight by 
fraud or concealment, will be held responsible for any damage which may 
arise from it while in the custody of the company. 

It is further stipulated and agreed, that goods shipped to points west of 
shall be subject to a change in classification and cor¬ 
responding change of rates beyond those points. 

Cases or packages of boots and shoes, and of other articles liable to 
peculation or fraudulent abstraction, must be strapped with iron or wood, or 
otherwise securely protected, or the companies will not be liable for diminu¬ 
tion of the original contents, and the companies will hold the freighter, in all 
cases, to bear the loss arising from improper packing. 

It is also agreed between the parties that the said companies, and the 
railroads and steamboats with which they connect, shall not be held account¬ 
able for any deficiency in packages if receipted for to them in good order. 

All articles of freight arriving at their places of destination must be taken 
away within twenty-four hours after being unladen from the cars,—each com¬ 
pany reserving the right of charging storage on the same, or placing the 
same in store at the risk and expense of the owner, if they see fit, after lapse 
of that time. 


CHAPTER XXI. 

HOTEL KEEPERS, INNKEEPERS, AND BOARDING-HOUSE 

KEEPERS. 

Hotel keepers and innkeepers are, in law, the same. An 
inn has been judicially defined as a house where the traveller is 
provided with everything which he has occasion for while on his 
way. There need not be a sign to make it an inn. A coffee* 
house or eating-room is not an inn, nor is a boarding-house. 

An innkeeper has a lien upon all the goods of a guest, for 
the price of his entertainment, or that of his servants and 
horses. This lien covers the goods brought to him by a guest, 
though they belong to another person. Thus he has a lien on 
a stolen horse which the thief brings to him. But he has no 
lien on the clothes or goods which a guest actually has upon his 
person. 



HOTEL KEEPERS , INNKEEPERS , £'7r. 


2 ;; 

He must receive every guest who offers, unless his house is 
full, or there is good reason to believe that the guest will be 
disorderly. A guest has a right to reasonable accommodations, 
but not to choose his apartment, or use it for other purposes 
than those for which it was designated. Public policy imposes 
upon an innkeeper a severe liability. In strict law, he is an 
insurer of the property committed to his care, against every¬ 
thing but the act of God, the public enemy, or the fraud or 
neglect of the guest. But there seems to be of late some 
disposition in the courts to hold him thus liable only where 
there has been some kind or measure of negligence on his part. 

A boarder at a boarding-house neither holds the keeper of 
the house to this liability, nor has the keeper a lien on the 
boarder’s goods. It is sometimes difficult to say whether a 
person in the house is a guest at an inn, or a boarder. From 
all the cases we infer this distinction: A boarder is one who 
makes a bargain for a certain time. A guest comes and goes 
when he likes, paying only for what he receives. Though he 
stays a long time at an inn or hotel, without any bargain on 
time, he is still a guest; holding the keeper of the inn to his 
liability, and having his goods under a lien to the keeper. But, 
if he makes a bargain on time, he becomes a boarder, and the 
liability and lien of the keeper cease. 

It is a good defence by an innkeeper against his liability for 
a loss, that it was caused by a servant of the owner, or by one 
who came with him as his companion, or by the owner’s own 
fault. It is also a good defence if the owner retained, personally 
and exclusively, the custody and care of the goods; but it is 
not enough to make this defence sufficient, that the owner 
exercised some choice as to where his goods should be placed, 
nor that the key of the room was given him. But an innkeeper 
may require of his guest to place his goods in a particular 
place, under lock and key; or to give notice to guests that he 
will not be responsible for money, or especially valuable goods, 
unless placed in the innkeeper’s safe. If such precautions are 
reasonable, and the guest neglects them, the innkeeper is not 
liable. Some articles of this kind a guest needs to have within 
his immediate reach; and such things he need not deposit in 


LIMITATIONS. 


278 

the safe, and the innkeeper would be liable if they were lost 
without the guest’s own fault. 

The innkeeper is liable for the loss of the goods while fairly 
in his custody, though not specially delivered to him: as if lost 
while the innkeeper’s servant was carrying them to an inn, or 
from the inn to the cars, or in a hack in which the innkeeper 
undertook to carry the guest “free” from a station to his inn. 

Some cases hold that the innkeeper is liable for the loss of 
goods placed in an inn although the owner does not himself 
lodge or eat there. But other cases, and we think with better 
reason, hold that the innkeeper is liable only for the goods when 
the owner comes and stays with them. He is not liable per¬ 
manently for goods left by a guest who has gone away. He 
would, however, still be held liable for them for a reasonable 
time, which, in one case, was said to extend over “some days.” 
For a guest may leave for a reasonable time,—which must not 
be long,—with the purpose of return; and while he is absent 
his goods are under the same responsibility of the innkeeper as 
if the owner were in the house. 

If a horse or carriage is put into a distant barn, or a horse 
into a pasture, by the innkeeper, without the knowledge or con¬ 
sent of the owner, the innkeeper is liable for their loss. 

We hold that a boarding-house keeper is liable for loss caused 
by the negligence of his or her servants, as he or she is for his 
or her own; but not, like an innkeeper, for a loss without 
negligence. 


CHAPTER XXII. 
LIMITATIONS. 


SECTION I. 

THE STATUTES OF LIMITATIONS. 

All of our States have what are called Statutes of Limita¬ 
tions. They are not the same everywhere; but they provide 
different periods of time within which the actions specified in 




CONSTRUCTION OF THE STATUTE. 


279 

the Statutes must be brought. These periods vary from twenty 
years to one. Generally, they are longer for real actions, or for 
actions on judgments or on contracts under seal, and shorter 
for simple contracts of various kinds. An abstract of these 
statutory provisions in all the States is given at the close of this 
chapter. 

All actions of account, and all which can be brought for 
indebtedness or damages, and all actions of debt grounded upon 
any lending, or contract without seal, and all actions for arrear¬ 
ages of rent, must be commenced and sued within the period of 
limitation fixed for bringing such actions by the statute law of 
the State in which the action is to be brought. 

In some States, a statute provides, in substance, that, if a 
debt or promise be once barred by the Statute of Limitations, 
no acknowledgment of the debt or new promise shall renew the 
debt, and take away the effect of the statute, unless the new 
promise is in writing, and is signed by the party who makes the 
promise. But this statute expressly permits a part-payment 
either of principal or interest of the old debt to have the same 
effect as a new promise. And this statute also provides, that if 
there be joint contractors or debtors, and a plaintiff is barred 
by the statute against both, but the bar of the statute is 
removed as to one by a new promise or otherwise, the plaintiff 
may have judgment against this one, but not against the ether. 

Such statutes have been passed in Maine, Massachusetts, 
Vermont, New York, Indiana, Michigan, Arkansas, and Cali¬ 
fornia, and in most of the other States. 

SECTION II. 

CONSTRUCTION OF THE STATUTE. 

For the law of limitation there is a twofold foundation: in 
the first place, the actual probability that a debt which has not 
been claimed for a long time was paid, and that this is the 
reason of the silence of the creditor. But, besides this reason, 
there is the inexpediency and injustice of permitting a stale 
and neglected claim or debt, even if it has not been paid, to be 
set up and enforced after a long silence and acquiescence. 


280 


LIMITATIONS. 


Before inquiring into fc the rules of law which now apply to 
the case of an acknowledgment or new promise, it should be 
remarked that a prescription, or limitation, of common law, 
much more ancient than the statutes above quoted, is still in 
force. This is the presumption of payment after twenty years, 
which is applicable to all debts; not only the simple contracts 
to which the Statutes of Limitation refer, that is, contracts 
which are merely oral, or which if written have no seal, but to 
specialties, or contracts or debts under seal or by judgment of 
court. Of these it will not be necessary to speak here, except¬ 
ing to remark, that in a few of our States the Statute of Limi¬ 
tation excepts a promissory note which is signed in the presence 
of an attesting witness, and is put in suit by the original payee, 
or his executor or administrator; such a note in those States, as 
in Maine and Massachusetts, may be sued any time within twenty 
years after it is due. Bank-bills and other evidences of debt 
issued by banks, are everywhere excepted from the operation of 
the statute. 

SECTION III. 

THE NEW PROMISE. 

What is the new promise which suffices to take a case out 
of the statute? A mere acknowledgment, which does not con¬ 
tain, by any reasonable implication or construction, a new 
promise, is not sufficient, and still less so if it expressly 
excludes a new promise. In the leading American case upon 
this point, before the Supreme Court of the United States, it 
was proved, in answer to the plea of the Statute of Limitations, 
that the defendant, one of the partners of affirm then dissolved, 
said to the plaintiff, “I know we are owing you;” “ I am getting 
old, and I wish to have the business settled it was held that 
these expressions were insufficient to revive the debt. So, in 
New Hampshire, in an action on a promissory note, the defend¬ 
ant, on being asked to pay the note, said “he guessed the note 
was outlawed, but that would make no difference, he was willing 
to pay his honest debts, always.” As he did not state in direct 
terms that he was willing to pay the note, this was held not 
sufficient to revive the debt. A new promise is not now implied 
by the law itself, from a mere acknowledgment. 


PART-PA YMENT. 


281 


The new promise need not define the amount of the debt. 
That can be done by other evidence, if only the existence of 
the debt and the purpose of paying it are acknowledged. Still, 
the new promise must be of the specific debt, or must distinctly 
include it; for if wholly general and undefined, it is not enough. 
A testator who provides for the payment of his debts, gen¬ 
erally, does not thereby make a new promise as to any one of 
them. 

If the new promise is conditional, the party relying upon it 
must be prepared to show that the condition has been fulfilled. 
Thus, if the new promise be to pay “when I am able,” the prom¬ 
isee must prove not only the promise, but that the promisor is 
able to pay the debt. 

As the acknowledgment should be voluntary, it follows that 
one made under process of law, as by a bankrupt, or by answers 
to interrogatories which could not be avoided, should never 
have the effect of a new promise. 

SECTION IV. 

PART-PAYMENT. 

A part-payment of a debt is such a recognition of it as 
implies a new promise, even if it was made in goods or chattels, 
if they were offered as payment, and agreed to be received as 
payment, or by negotiable promissory note or bill. Thus, in a 
case where one was sued for money due for a quantity of hay, 
and pleaded that it was barred by limitation, which was a good 
defence, the plaintiff proved in reply that defendant had given 
him within the limitation a gallon of gin as part-payment for 
his debt, and it was held that this took the case out of the 
Statute of Limitations, and the plaintiff recovered. But a pay¬ 
ment has this effect only when the payment is made as of a part 
of a debt. If it is made in settlement of the whole, of course 
it is no promise of more. And a bare payment, without words 
or acts to indicate its character, would not be construed as car¬ 
rying with it an acknowledgment that more was due and would 
be paid. 

If a debtor owes several debts, and pays a sum of money. 


282 


LI MIT A TIO NS. 


he has the right of appropriating that money to one debt or 
another as he pleases. If he pays it without indicating his own 
appropriation, the general rule is, that the creditor who receives 
the money may appropriate it as he will. There is, however, 
this exception. If there be two or more debts, some of which 
are barred by the statute, and others are not barred by it, the 
creditor cannot appropriate the payment to a debt that is barred, 
for the purpose of taking it out of the statute by such part- 
payment. 

SECTION V. 

THE STATUTORY EXCEPTIONS. 

As persons may have a right of action without being able to 
begin the action within the period required by the statutes, 
because they are disabled by infancy, or by absence from the 
State, or by unsoundness of mind, or imprisonment, or in some 
States by being a married woman, it is generally provided in 
the statutes that the limitations there prescribed do not apply 
to persons so disabled. The more common of these disabilities 
and the most universal in our State laws, are infancy and 
absence from the State. But these disabilities must exist 
when the cause of action arises to prevent the statutes of limita¬ 
tion from applying. And after the disabilities are removed, the 
persons who have been disabled may bring their action within 
certain periods of time. These periods are stated in the 
abstract of the Statutes of Limitation at the close of this 
chapter. 

The effect of these is, that the disability must exist when 
the debt accrued ; and then, so long as the disability continues 
to exist, the statute does not take effect. But it is a general 
rule, that, if the limitation begins to run, it goes on without 
any interruption or suspension from any subsequent disability. 
Thus, if a creditor be of sound mind, or a debtor be at home 
when the debt accrues, and one month afterwards the creditor 
becomes insane, or the debtor leaves the country, nevertheless 
the six years go on, and after the end of that time no action 
can be commenced for the debt. Or if the disability exists 
when the debt accrues, and some months afterwards ceases. 


WHEN THE PERIOD OF LIMITATION BEGINS. 283 

so that the limitation begins to run when it ceases, and after¬ 
wards the disability comes again, it does not interrupt the 
limitation. 

If, when a debt is due, the debtor is out of the State, the 
limitation does not begin to run. If afterwards he returns to 
the State, it then begins to run, and, having begun, it continues 
to run, although he goes out of the State again, and returns no 
more. 

In this country, a rational construction has been given to the 
disability of being out of the State, and its removal; and it is 
not understood to be terminated merely by a return of the 
debtor for a few days, if during those days he was not within 
reach. If, however, the creditor knew that he had returned, or 
might have known it by the exercise of reasonable care and 
diligence, soon enough to have profited by it, this removal of 
the disability brings the statute into operation, although the 
return was for a short time only. 

SECTION VI. 

WHEN THE PERIOD OF LIMITATION BEGINS. 

It is sometimes a question from what point of time the limi¬ 
tation must be counted. And the general rule is, that it 
begins when the action might have been commenced. If a 
credit is given, this period does not begin until the credit has 
expired. If a note on time be given, the limitation does not 
begin until the time has expired, including the additional three 
days’ grace; if a bill of exchange be given, payable at sight, 
then the limitation begins after presentment and demand; but 
if a note be payable on demand, or money is payable on de¬ 
mand, then the limitation begins at once, because there may be 
an action at once. If there can be no action until a previous 
demand, the limitation begins as soon as the demand is made. 
If money be payable on the happening of any event, then the 
limitation begins after that event has happened. If several 
successive credits are given, as if a note is given which is to be 
renewed ; or if a credit is given, and then a note is to be given; 
or if the credit is longer or shorter, at the purchaser’s option, 
as if it be agreed that a note shall be given at two or four 


LI MIT A TIONS. 


284 

months, then the limitation begins when the whole credit or 
the longer credit has expired. 

SECTION VII. 

THE STATUTE DOES NOT AFFECT COLLATERAL SECURITY. 

It is important to remember that the Statute of Limitations 
does not avoid or cancel the debt, but only provides that “ no 
action shall be maintained upon it ” after a given time. There¬ 
fore, it does not follow that no right can be sustained by the 
debt, although the debt cannot be sued. Thus, if one who 
holds a common note of hand on which there is a mortgage or 
pledge of real or of personal property, without valid excuse 
neglects to sue the note until after the limitation, he can never 
bring an action upon that note ; but the pledge or mortgage is 
as valid and effectual as it was before; and, as far as it goes, 
his debt is secure; and for the purpose of realizing this secu¬ 
rity, by foreclosing a mortgage, for example, he may have what¬ 
ever process is necessary, although he cannot sue the note 
itself. And the debtor cannot redeem the property pledged or 
mortgaged except by payment of the debt. 

ABSTRACT OF THE STATUTES OF LIMITATIONS 
OF ALL THE STATES, AND TERRITORIES. 

ALABAMA.— Judgments of courts of records, twenty years. Actions 
to recover real property, contracts or writings under seal, actions against 
sheriffs, coroners, constables, and other public officers, for malfeasance in 
office, ten years. Trespass to real or personal property, detinue, trover, all 
promises and writings not under seal, actions on an account stated, 
actions for the use and occupation of land, actions against sureties of public 
officers, and sureties of executors, administrators, and guardians, and judg¬ 
ments of justices of the peace, six years. Actions to recover money due 
on open and unliquidated account, the time of accrual of the right of action 
to be computed from the date of the last item, three years. Assault and 
battery, false imprisonment, malicious prosecutions, criminal conversation, 
seduction, breach of promise, and libel and slander, actions against steam¬ 
boats and other vessels begun by attachment, one year. Persons under 
disability have three years after the removal of the same in which to sue or 
defend, but action must be brought within twenty years. Period of defen¬ 
dant’s absence from the State is not included. Part payment or uncondi¬ 
tional promise in writing only will revive cause of action. 


ABSTRA CT OF STA TUBES OF LIMITA TIONS. 285 

ARIZONA.— Judgments of courts in the territory, five years. Actions 
on other written instruments, four years. Actions on statute liabilities 
other than penalties or forfeitures, for trespass on real property, for taking, 
detaining or injuring goods and chattels, and for relief on the ground of 
fraud, three years. Actions on contracts or obligations not founded on an 
instrument in writing, on judgments rendered out of the Territory or on an 
instrument in writing executed out of the Territory, on an open account for 
goods sold and delivered, or charged in a store account, and actions against 
sheriffs, coroners, or constables, except for an escape, two years. Actions 
for statutory penalties or forfeitures for libel, slander, assault and battery, or 
false imprisonment, and actions against a sheriff or other officer for an 
escape, one year. 

ARKANSAS. — Actions to recover real property, seven years. But 
persons under legal disabilities may bring their action within three years 
after the removal of such disability. Judgments, bonds, and writings under 
seal, ten years. Actions on bonds of executors and administrators, eight 
years. On official bonds of sheriffs, coroners, and constables, four years. 
Promissory notes and other instruments in writing, five years. Contracts 
not in writing, trespass on lands, libels and actions for taking or injuring 
goods and chattels, three years. Actions against sheriffs and coroners 
except for escape, two years. Actions for criminal conversation, assault and 
battery, false imprisonment, slander, actions against sheriffs for escape, one 
year , all other causes of action, five years. In all cases except actions to 
recover real property, the limitation in regard to persons under disabilities 
begins to run from the removal of the same. In actions on an account 
current, the cause of action accrues from the last item proved in the account. 
Any new promise must be in writing, and signed by the party to be charged. 
Actions which survive may be brought by and against executors and admin¬ 
istrators within one year from the death of the party, or the granting letters 
testamentary or of administration. Any action failing for any cause not 
affecting the right of action may be recommenced within one year after such 
failure. 

CALIFORNIA. —Actions to recover real property or mesne profits of 
the same, five years. Judgments of courts of record, five years. On 
contracts, obligations, or liabilities founded on an instrument in writing 
executed in the State, four years. Actions on statute liabilities, other than 
penalties and forfeitures, trespass on real estate, trover, detinue, and replevin, 
actions in case of fraud, the time beginning to run from discovery of the 
same, three years. Contracts not in writing or on written instruments 
executed out of the State, actions against sheriffs, coroners, and constables, 
for acts done in official capacity, except for escapes, and actions for the 
death of one caused by the wrongful act or neglect of another, two years. 
Actions for statute penalties or forfeitures, libel, slander, assault, battery, 
false imprisonment, seduction, actions against sheriffs and constables for 
escapes, one year. There is no limitation to actions against a bank or 


286 


LIMITATIONS. 


trust company for the recovery of deposits. In actions on mutual, open, 
and current accounts, the cause of action is deemed to have accrued from 
the last item proved on either side. The time of limitation is not to run 
against persons out of the State. The limitation in case of persons under 
disabilities at the time of accrual of right begins to run from the removal of 
the same. Actions by representatives within six months from death of 
creditor, actions against the same within six months after granting letters 
testamentary or of administration. New promise to revive action must be 
in writing. 

COLORADO. — Actions to recover real property, five years. Contracts, 
judgments of courts not of record, rents, waste, trespass on real estate, 
replevin, trover, and detinue, and actions on the case, except libel and 
slander, six years. Assault and battery, false imprisonment, slander and 
libel, one year. Actions against sheriffs and coroners as such, except for 
escape, one year. Actions against sheriffs for escape, six months, all other 
personal actions, three years. Limitations in case of persons under disabil¬ 
ities begin to run from the time of removal of the same. When the cause 
of action accrued out of the State on a contract, judgment or sealed instru¬ 
ment, the action must be brought within six years of the time it accrued. 

CONNECTICUT. — Actions to recover real property, fifteen years. But 
persons under legal disabilities may bring such action within five years 
after removal of the disability. Suits on contracts under seal and promissory 
notes not negotiable, seventeen years; and persons under disabilities, within 
four years after removal of the same._ Actions on all simple contracts, 
book debts, debt on simple contract, contracts in writing not under seal, 
except notes not negotiable, six years. Persons under disabilities, three 
years after removal of the same. In cases of settlement of partnership, or 
joint occupancy of real or personal estate or joint accounts, courts will take 
into consideration all the joint transactions since the time of the last settle¬ 
ment, though more than six years have elapsed since said settlement. Tres¬ 
pass on the case, six years. Except the cases mentioned above, an action 
founded on any express contract or agreement not reduced to writing, or of 
which there is some memorandum, an action of trespass, or slander, must be 
brought within three years. Scire facias against garnishee, one year. 
Actions for damages for loss of life from negligence, from the date of the 
negligence complained of. Any action properly begun, and failing for a 
cause not affecting the right of action, may be recommenced within one year 
after such failure, except actions against executors and administrators, 
which may be begun again within six months. When cause of action is 
fraudulently concealed, the limitation shall begin to run from discovery of 
the right of action by the person entitled. 

DAKOTA. — Actions to recover real property, twenty years j but persons 
under legal disabilities may begin such actions within ten years after removal 
of the same. Judgments and sealed instruments, twenty years. Contracts 
other than above, trespass on real estate, trover, detinue, and replevin, crim- 


ABSTRA CT OF STA TUTES OF LIMIT A TIONS. 287 

inal conversations, and any other injury to the person, or rights of another 
not arising on contracts and not hereinafter enumerated, statute liabilities 
other than for forfeitures and penalties, six years. Actions against sheriffs, 
coroners, and constables as such, except for escapes, three years. Libel, 
slander, assault, battery, faNe imprisonment, two years. Against sheriffs, 
etc., for escapes, one year , all other actions for relief, ten years. In actions 
on mutual, open, and current accounts, the cause of action is deemed to 
have accrued from the date of the last item proved. Time of defendant’s 
absence from the State not included. Persons under disabilities, except 
infants, may bring action within one year after removal of the same, pro¬ 
vided the time is not extended more than five years, and infants may 
bring their action within one year after attaining their majority. A new 
action may be begun within one year after the reversal of judgment in the 
old case. Any new promise must be in writing, in order to take the case 
out of the statute. 

DELAWARE. — Real actions, twenty yearsj but persons under disabili¬ 
ties may bring a real action within ten years from removal of the same. On 
official bonds of sheriffs, executors, and administrators, six years. On 
guardian’s bonds, three years from determination of guardianship. Tres¬ 
pass, replevin, detinue, debt other than specialty, account, assumpsit, and 
case, three years. Time of defendant’s absence from the State is not in¬ 
cluded. In mutual and running accounts, the limitation does not begin to 
run while the account is open. Promissory notes, bills, and acknowledg¬ 
ments in writing, six years. Waste, three years. Persons under disabilities 
may begin personal actions within three years after removal of disability. 

DISTRICT OF COLUMBIA. —Actions on bill, bond, judgment, or other 
specialty, twelve years. Persons under disability, five years after removal 
of the same. Actions upon simple contracts, including bills of exchange 
and notes not under seal, book debt or account, debt, detinue and replevin 
and trespass to real estate, three years. Slander, trespass, assault and bat¬ 
tery, wounding, and imprisonment, one year. Persons under disability have 
the same time after removal of the same. 

FLORIDA. — Real actions, seven years. Judgments and writings under 
seal, twenty years. Writings not under seal, five years. Statute liabilities 
other than penalties and forfeitures, trespass on real property, trover, detinue, 
and replevin, and contracts not in writing, except an open account for goods, 
wares, and merchandise, three years. Statute penalties and forfeitures, 
libel, slander, assault, battery, false imprisonment, and actions on open 
accounts, two years. Action for articles charged in a store account and 
those for relief, for causes above mentioned, four years. In actions 
to recover a balance due on mutual, open, and current accounts, the cause 
of action is deemed to have accrued from the date of the last item proved 
on either side. New promise must be in writing. 

GEORGIA. — Actions to recover real property, twenty years j foreign 
judgments, five years ; domestic judgments, seven years. Sealed instru- 


288 


LIMITATIONS. 


ments, twenty years j statutory rights, twenty years; contracts in writing, 
including bills and notes, six years; open accounts and contracts not in 
writing, four years; other actions ex contractu, four years. Trespass on 
realty, four years j on personalty, four years; injuries to person, except 
libel and slander, two years j libel and slander, one year. Limitations in 
case of persons under disabilities begin to run from the removal of the 
same. Any new promise must be in writing. 

IDAHO. —Real actions, five years. Judgments and actions for mesne 
profits of real estate, six years. Contracts and obligations in writing, five 
years. Those not in writing and all causes of action not otherwise provided 
for, four years. Statute liabilities other than penalties and forfeitures, tres¬ 
pass on real estate, taking, detaining, or injuring goods and chattels, and 
actions for relief on the ground of fraud or mistake, three years. Actions 
against officers for seizing, detaining, or injuring property, one year. A 
cause of action barred in the State or Territory where it arose, is barred 
here. 

ILLINOIS. — Actions to recover real property, twenty years ; but seven 
years residence with connected record title, or seven years’ actual possession 
under claim and color of title and payment of all taxes legally assessed, or 
in the case of unoccupied land, seven years, payment of taxes made in good 
faith under claim and color of title, constitutes ownership to the extent of 
the paper title. Bonds, promissory notes, bills, written leases, written con¬ 
tracts, and other indebtedness in writing, ten years. Unwritten contracts, 
awards of arbitration, damages to real or personal property, detinue, and 
trover, and all civil actions not otherwise provided for, five years. Injuries 
to person, false imprisonment, malicious prosecution, statutory penalties, 
abduction, and seduction, two years. Slander and libel, one year. Actions 
by representatives of deceased persons, one year from death ; against the 
same, one year from issuing letters testamentary or of administration. 
Persons under disabilities may bring real or personal actions within two 
years from the removal of the same. If any person, liable to an action, 
conceals the same, action may be begun within five years after the discovery. 
Any action defeated for any cause not affecting the right of action, may be 
begun again within one year from such defeat. New promise must be in 
writing. The time of debtor’s absence from the State is not included in 
the period of limitation. 

INDIANA. — Real actions, judgments of a court of record and contracts 
in writing, other than those for the payment of money, twenty years. 
Promissory notes, bills of exchange, and other written contracts for the 
payment of money, ten years. Accounts and contracts not in writing, use, 
rents, and profits, of real estate, injuries to property, trover, replevin, actions 
for relief against fraud, and for money collected by a public officer, six years. 
Injuries to person or character, statutory penalties, and indentures of ap¬ 
prenticeship, two yeprs. Actions for the recovery of real property sold on 
execution, brought by the debtor or any person claiming under him, by title 


ABSTRA CT OF ST A TUTES OF LIMITA TIONS. 289 

acquired after judgment, ten years from sale; for real property sold by 
executors, etc., on a judgment, by a party to the judgment or persons claim¬ 
ing under him, subsequent to the judgment, five years after confirmation of 
sale. Actions not specially limited by statute, fifteen years. Time of 
debtor’s absence from the State not included. In mutual, open, and current 
accounts, the cause of action is deemed to have accrued from date of last 
item proved. Persons under disabilities at the time of accrual of right may 
bring their action within two years after removal. Actions by or against 
executors and administrators, eighteen months after death. An action failing 
for a cause not affecting the right may be recommenced within five years. 
New promise must be in writing. 

IOWA. — Judgments of court of record, twenty years. Real actions, 
/udgments other than of courts of record and written contracts, ten years . 
Contracts not in writing, and injuries to property, fraud, and all other actions 
not otherwise provided for, five years. Actions against sheriffs and public 
officers, three years j injuries to person or reputation, and statute penalties, 
two years. In open accounts, the cause of action accrues from the date of 
the last item proved. Persons under disabilities may begin action within 
one year from the removal of the same. New promise or acknowledgment 
must be in writing. Period of debtor’s non-residence in the State not in¬ 
cluded, but actions barred where debtor has previously resided, are barred 
here. 

KANSAS. — Actions for recovery of land sold on execution, or by ad¬ 
ministrators, etc., by order of court, or for taxes, five years from the record¬ 
ing of the deed, other real actions, fifteen years j but persons under disa¬ 
bilities may bring action within two years after removal. Contracts and 
agreements in writing, and actions on bonds of executors, etc., five years. 
Contracts not in writing, and statutory liabilities, other than penalties or 
forfeitures, three years. Trespass on real or personal property, replevin, 
relief from fraud and injuries to rights not herein enumerated, two years. 
Libel, slander, assault and battery, malicious prosecution, false imprison¬ 
ment, penalties, and forfeitures, one year. Time of debtor’s absence from 
the State not included, and causes of action arising in another State, and 
barred there, are barred here also. Persons under disabilities may begin 
personal action within one year after removal thereof. After failure of an 
action for any cause not affecting the right of action, new action may be 
begun within one year. Acknowledgment of a debt barred must be in 
writing. 

KENTUCKY. — Real actions, fifteen years j but seven years' occupation 
under converted record title is a bar. Persons under disabilities at the 
time of the accrual of such right, may bring an action within three years 
after the removal of the same, provided the whole time is not extended 
beyond thirty years. Actions on judgments, bonds, and written contracts, 
fifteen years. Contracts not in writing, statute liabilities, penalties and 
forfeitures, trespass on real and personal property, trover, detinue, replevin, 
bills, notes, and checks, and accounts between merchant and merchant, 
19 


290 


LIMITATIONS. 


relief from fraud, and any action for injury to plaintiffs rights not arising 
on contract and not specially enumerated, five years. Merchants’ accounts 
for goods sold, or charged in store account, two years from first day of 
January, after delivery. Injuries to person, criminal conversation, breach of 
promise, seduction, malicious prosecution, conspiracy, libel and slander, one 
year. In case of persons under disabilities, limitation begins to run from 
the removal of the same. Executors and administrators may bring actions 
which survive one year after death of party entitled. 

LOUISIANA. — Prescription against immovables, ten years under title, 
and in good faith, twenty years under title, whether in good faith or not, 
thirty years without reference to title or good faith. Against movables, 
three years. Actions on judgments for money and stated accounts, ten 
years. Bills and notes, Jive years. Arrearages of rent, money lent, ac¬ 
counts of merchants and open accounts, three years. Libel and slander, 
and actions by workmen, etc., for wages, one year. Prescription does not 
run against minors and persons under interdiction unless specified by law. 

MAINE. — Judgments of courts of record, twenty years. Real actions, 
twenty years ; persons under disabilities, twenty years from removal of 
same, provided the whole time is not extended beyond forty years. Wit¬ 
nessed promissory notes and bank bills, twenty years. Debt on contract, 
and liabilities not under seal, judgments not of record, arrears of rent, 
assumpsit, and all actions on the case, waste, trespass, replevin, trover, and 
detinue, six years. Assault and battery, false imprisonment, libel and slan¬ 
der, two years j escape, scire facias against bail and trustees, one year j all 
other personal actions, twenty years. On mutual and current accounts, 
action accrues from the last item proved. Limitation in case of persons 
under disabilities begins to run from removal of the same. After failure of 
action for any cause not affecting the right, a new action may be begun 
within six months. An acknowledgment must be express and in writing to 
revive a debt. Time of debtor’s absence from the State is not included in 
period of limitation. 

MARYLAND. — Twenty years gives title to land. Actions on judg¬ 
ments, recognizances, specialties, twelve years, and six years after removal 
of disabilities. Bonds of executors and administrators, and other officers 
except sheriffs and constables, twelve years. Sheriffs’, coroners’, and con¬ 
stables’ bonds, five years from the date of the bond. Actions of account, 
assumpsit, or on the case, debt on simple contract, for rent in arrear, detinue, 
and replevin, trespass for injuries to real or personal property, three years. 
Slander and trespass to person, one year. In case of persons under disabil¬ 
ities, limitation begins to run from the removal of the same. ' 

MASSACHUSETTS. —Real actions, twenty years. Witnessed promissory 
notes by original payee, and bills and notes of a bank, twenty years. Con¬ 
tracts not under seal, except judgments of courts of record, actions for 
arrears of rent, except upon leases under seal, replevin, and all other actions 
for taking, detaining, or injuring goods or chattels, and tort, except as here- 


ABSTRACT OF STATUTES OF LIMITATIONS. 


291 

after specified, six years. Assault and battery, false imprisonment, slander, 
and libel, two years. Actions against executors, trustees, sheriffs, etc., for 
taking personal property, two years. On mutual and open account current, 
cause of action is deemed to have accrued at the time of the last item proved. 
Persons under disabilities may bring their action within the time limited 
after the removal of such disabilities. Limitations do not run against per¬ 
sons out of State. Actions by and against an executor or administrator of a 
deceased person within two years from granting letters testamentary or of 
administration. After failure of an action for any cause not affecting the 
right of action, a new action may be begun within one year. New promise 
must be in writing. All other actions not otherwise limited, including those 
on judgments of courts of record, twenty years. 

MICHIGAN. —Real actions where defendant claims title through deed 
made upon sale by executor, sheriff, etc., under order of court, five years; 
where he claims title under deed made on tax sale, ten years; in all other 
cases, fifteen years, except when party entitled was absent from the United 
States, and not in British Provinces when right of action accrued, and in 
that case, twenty years. Judgments of courts of record, ten years. Actions 
of debt upon contracts not under seal, judgments not of record, actions for 
arrears of rent, assumpsit or case founded on any contract or liability, waste, 
replevin, and trover, and all other actions for taking, detaining, or injuring 
goods or chattels, and for all actions not otherwise mentioned, six years. 
Actions against sheriffs for misconduct of deputies, three years. Trespass 
on land, assault and battery, false imprisonment, libel and slander, two years. 
In actions on an account current, the cause of action is deemed to have 
accrued from the date of the last item proved in the account. Limitations 
in the case of persons under disabilities begin to run from the removal of 
the same. In case of death, actions which survive may be brought by or 
against executors and administrators within two years after granting letters 
testamentary or of administration. After an action fails for any cause not 
affecting the right, a new action may be begun within one year. Time of 
defendant’s absence from the State is not included in limitation. 

MINNESOTA. — Real actions, twenty years. On judgments of courts of 
record, ten years. Contracts other than judgments, trespass on real estate, 
actions for taking, detaining or injuring personal property, replevin, injuries 
to the person or rights of another not arising on obligation, and actions for 
relief from fraud, dating from the time of the discovery of the same, six 
years. Actions against sheriffs, coroners, and constables, as such, three 
years. Libel, slander, assault, battery, and false imprisonment, two years. 
Time of defendant’s absence from the State is not included. On mutual 
and current accounts, the cause of action accrues from the date of the last 
item proved on either side. Persons under disabilities other than infancy, 
within one year after removal of the same, provided the original limitation 
is not extended more than five years , and infants within o?ie year after com¬ 
ing of age. After the failure of any action for a cause not affecting the 
right, a new action may be begun within one year. Any new promise must 
be in writing. 


292 


LI MIT A TIONS. 


MISSISSIPPI. — Real actions, ten years. Persons under disabilities at 
the time of the accrual of the right, within ten years after the removal of the 
same. On judgments rendered in another State against a citizen of this 
State, three years , other judgments, seven years. Actions on a promissory 
note, bill of exchange, or other contract in writing, waste and trespass on 
real estate, detinue, trover, or other action for the recovery of personal prop- 
erty, or damages for its conversion, six years. Actions on open account 
and verbal contracts, three years. Replevin, assault, battery, maiming, false 
imprisonment, malicious arrest, slander, and libel, one year. In case of 
persons under disabilities, limitations begin to run from the removal of the 
same. Actions by and against executors and administrators within one year 
from the date of the letters testamentary or of administration. After the 
failure of any action for a cause not affecting the right of action, a new 
action may be begun within one year. Any new promise or acknowledg¬ 
ment must be in writing. When the right to recover on a debt secured by 
mortgage is barred, the remedy on the mortgage is also barred. 

MISSOURI. — Real actions, ten years. Persons under disabilities, three 
years from the removal of the same, provided the limitation is not extended 
more than twenty-four years from the original accrual of the right. Writ¬ 
ings, sealed or unsealed, for the payment of money or property, actions on 
covenants in deeds, ten years. Judgments are presumed to be satisfied in 
twenty years. Actions on contracts not in writing, on open accounts, 
implied promises for the payment of money, injury to the person or to per¬ 
sonal property, actions for relief on ground of fraud, trespass on real estate, 
trover, detinue, and replevin, five years. Actions against sheriffs, coroners, 
or other officers, in their official capacity, three years. Libel, slander, 
assault, battery, false imprisonment, and crim. con., two years. Limitations 
in case of persons under disabilities begin to run from the removal of the 
same. Any action failing for a cause not affecting the right of action may 
be brought anew within one year after such failure. Any new promise must 
be in writing. The time of defendant’s absence from the State without 
leaving a family or a place of abode in the State is not included in the period 
of limitation. 

MONTANA. —Judgments and contracts in writing not relating to real 
estate, six years. Actions on contracts not in writing for goods sold and deliv¬ 
ered, and any contract, express or implied, or other ground of relief not specially 
enumerated, three years. Waste or trespass on real estate, statute liabilities 
other than penalties or forfeitures, taking, detaining, or injuring goods or 
chattels, actions for the specific recovery of personal property, relief on 
ground of fraud, dating from the discovery thereof, and actions against a 
sheriff for escape, two years. Actions for statute penalties, one year. There 
is no limit for the recovery of deposits from banks, etc. Time of defendant’s 
absence from the Territory is not included in limitation. New acknowledg¬ 
ment or promise must be in writing. A cause of action barred by the laws 
of the State or Territory where it accrued is barred here. 


ABSTRACT OB' STATUTES OF LIMITATIONS. 


293 


NEBRASKA. — Real actions, ten years. Bonds of executors, adminis¬ 
trators, guardians, and sheriffs, ten years. Specialties, contracts in writing, 
foreign judgments, five years. Contracts not in writing, statutory liabilities, 
except penalties and forfeitures, trespass on real property, trover, detinue, 
replevin, and relief on ground of fraud, four years. Libel, slander, assault 
and battery, malicious prosecution, false imprisonment, statutory penalties 
and forfeitures, and forcible entry and detainer, one year. Persons under 
disabilities may bring action within the time limited after removal of the 
same. New promise must be in writing. Actions which have been barred 
by the laws of any other State or Territory are barred here. 

NEVADA. — Real actions, except for mining daims, five years. Judg¬ 
ments and contracts in writing, six years. Actions on open account for 
goods sold and delivered, or charged in store account, and contracts not in 
writing, four years. Statute liabilities other than penalties or forfeitures, 
trespass on real estate, taking, detaining or injuring goods and chattels, spe¬ 
cific recovery of personal property, and relief on ground of fraud dating from 
the discovery thereof, three years. Actions for the recovery of mining 
claims against sheriffs, etc., in their official capacity, statute penalties and 
forfeitures, libel, slander, assault, battery, and false imprisonment, two years. 
Statute does not run during defendant’s absence from the State, or against 
persons under disability. Acknowledgment or new promise must be in writ¬ 
ing. Actions barred by the laws of any other State or Territory are barred 
here. An action on a judgment, contract for the payment of money or dam¬ 
ages obtained or incurred out of the State must be commenced within two 
years. 

NEW HAMPSHIRE. — Real actions, twenty years ; persons under legal 
disabilities at the time of accrual of the right, five years from the date of 
removal of the same. On judgments, recognizances, and contracts under 
seal, twenty years. Trespass to the person and actions for defamatory 
words, two years. All other personal actions, six years. Writ of error, 
three years after judgment. Scire facias against bail and indorsers of 
writs, one year. Persons under disabilities may bring any personal action 
within two years after removal of the same. Any new promise, verbal or 
written, revives a debt. 

NEW JERSEY. — Real actions, twenty years. Actions on bonds of 
executors, administrators, guardians, trustees, receivers, or assignees, twenty 
years. On judgments, twenty years. On sealed instruments, sixteen years. 
Trespass, detinue, trover, replevin, debt other than specialty, actions on an 
account, actions on the case except slander, and actions that concern the 
trade or merchandize between merchant and merchant, six years. Assault 
menace, battery, wounding, and imprisonment, four years. Slander, two 
years. On sheriff’s bond, nine years. Constable’s bond, four years. In 
case of persons under disability, the limitation begins to run from the date 
of the removal of the same. Limitations do not run against persons out of 
the State. 


294 


LIMITATIONS. 


NEW MEXICO. — Real actions, ten years. Persons under disability 
three years from the removal of the same. Judgments, fifteen years. Notes 
and other contracts in writing, six years. Accounts, contracts not in writ¬ 
ing, injuries to property, conversion of personal property, relief on ground 
of fraud, and all other actions not specially provided for, four years. Actions 
against sureties on official bonds, against sheriffs in their official capacity, 
injuries to person or reputation, two years. Replevin, one year. Suits 
against estates of deceased persons must be brought within two years after 
death. Representatives of persons dying within one year of expiration of 
limitation have one year from death to bring suit. Persons under disability 
are allowed one year from the removal of the same. New promise must be 
in writing. 

NEW YORK. —Real property, twenty years. Persons under disabilities, ten 
years after removal of the same. Judgments and sealed instruments, twenty 
years. Contracts, obligations, and liabilities, express or implied, other than 
the above, statute liabilities other than penalty or forfeiture, actions for relief on 
ground of fraud, judgments of courts not of record, actions for injury to prop¬ 
erty or persons, except as otherwise provided, and for recovery of chattels, six 
years. Actions against sheriffs, coroners, or constables in their official 
capacity, except for an escape, actions for injury to the person resulting from 
negligence, penalties recoverable by person aggrieved, and action against 
executor, etc., for taking or injuring personal property, three years. Libel, 
slander, assault, battery, false imprisonment, and forfeitures to the State, two 
years. Against sheriffs Or other officers for an escape, one year. All other 
actions for relief, ten years. In actions on an account current, the cause of 
action is deemed to have accrued from the date of the last item proved on 
either side. Limitation does not run against a person during his absence 
from the State, unless he designates a representative in manner provided by 
statute. New acknowledgment or promise must be in writing. 

NORTH CAROLINA. — Real actions, twenty years; where adverse pos¬ 
session is under color of title, seven years ; persons under disabilities, three 
years after removal of the same. Judgments of a court of record, sealed 
instruments, foreclosure, and redemption of mortgages, ten years. Judg¬ 
ments not of record, and actions by creditors of a deceased person against 
his representatives, seven years. Bonds of public officers, guardians, execu¬ 
tors, administrators, and actions for injury to any incorporal hereditament, 
six years. Actions on contracts or liabilities arising out of contracts, 
actions on statute liabilities other than penalty of forfeiture, trespass on real 
property, trover, detinue, and replevin, crim. con., or any other injury to the 
person or rights of another not arising on contract or otherwise provided 
for, actions against sureties on bonds of executors, administrators, and guar¬ 
dians, three years. Actions against sheriffs, etc., for trespass under color of 
office, libel, assault, battery, and false imprisonment, actions for escape 
against sheriffs and other officers, one year. Slander, six months. Actions 
for relief not otherwise provided for, ten years. Persons under disabilities 


ABSTRACT OF STATUTES OF LIMITATIONS. 


295 

may bring their action within the time limited after removal of the same, 
except in case of actions for escape. Actions by and against representatives 
of deceased persons, one year after death. Actions duly begun and failing 
for any cause not affecting the right of action may be brought again within 
one year. New promise must be in writing. Time of absence from the 
State if more than a year is not reckoned. 

OHIO. — Real actions, twenty-one years ; persons under disabilities, ten 
years after removal of the same. Bonds of executors, administrators, guard¬ 
ians, sheriffs, or other officers, ten years. Specialties and contracts in 
writing, fifteen years. Contracts not in writing, and statutory liabilities, 
other than penalty or forfeiture, six years. Trespass on real property, 
trover, replevin, detinue, actions against executors and administrators, other 
actions for injury to the rights of plaintiff not arising on contract and for 
relief from fraud, four years; forcible entry and detainer, two years. Libel } 
slander, assault, battery, malicious prosecution, and false imprisonment, 
statutory penalty or forfeiture, one year. Actions for relief not enumerated, 
Un years. In case of persons under disabilities, limitations begin to run 
from the removal of the same. Any acknowledgment must be in writing to 
take the case out of the statute. Time of defendant’s absence from the State 
is not included. Cause of action barred in State where it arose is barred here. 

OREGON. — Real actions, ten years. Judgments of record and sealed 
instruments, ten years. Other contracts, six years. Statutory liabilities 
other than penalty or forfeiture. Waste, trespass on real estate, trover, 
detinue, and replevin,' six years. Actions against sheriffs, coroners, and 
constables in official capacity, except for escape, penalties and forfeitures, 
three years. Libel, slander, assault and battery, and false imprisonment, 
or for any injury to the person, or rights of another, not arising on contract, 
and not specifically enumerated, two years. Actions against officers for an 
escape, one year. In actions on mutual, open, and current account, the 
cause of action is deemed to have accrued from the last item proved, but 
when one year shall have elapsed between any of a series of items, they are 
not to be deemed such an account. Limitations do not run against persons 
out of the State. Persons under disabilities, except infants, may bring 
action within one year after removal of the same, provided the time is not 
extended more than five years , and infants one year after attaining their 
majority. New promise must be in writing. 

PENNSYLVANIA.— Real actions, twenty-one years; persons under 
disabilities, thirty years after the right of entry accrued. Trespass on real 
property, detinue, trover, replevin, actions of account and on the case, except 
such accounts as concern the trade between merchant and merchant, and 
actions of debt other than specialty, six years. Judgments and mortgages, 
and sealed instruments are presumed paid after twenty years , unless such 
presumption is positively rebutted. Trespass to the person, two years. 
Slander, one year. After failure of an action for a cause not affecting the 
right of action, a new action may be brought within one year. Limitations, 


296 LIMITATIONS. 

in case of persons under disabilities, begin to run from the removal of the 
same. 

RHODE ISLAND.— Actions to recover real property are not limited, 
but twenty years of quiet, uninterrupted, and adverse possession is a good 
evidence of title. Slander, one year. Trespass, four years. Actions of 
account, except such as concern the trade or merchandise between merchant 
and merchant; actions on the case, except for slander, debt founded on 
contract, except specialty, actions for arrearages of rent, actions of detinue 
and replevin, six years. Debt other than the preceding and covenant, 
twenty years. In case of persons under disabilities, the limitation begins 
to run from the removal of the same. Actions against executors and admin¬ 
istrators, except for funeral charges and expenses of last illness, cannot be 
brought for one year after granting letters testamentary, or of administration, 
and are barred in three years thereafter. Actions failing for a cause not 
affecting the right of action, one year from such failure. Limitation does 
not run in favor of a defendant during his absence from the State unless he 
leaves property within the State which can be taken by ordinary process of 
attachment. 

SOUTH CAROLINA.— Real actions, ten years j persons under disabil¬ 
ity, ten years additional, but, action must be brought within five years after 
removal of disability. Judgments and sealed instruments, other than sealed 
notes and bonds for the payment of money only not secured by mortgage, 
twenty years. Other contracts, statutory liabilities, except forfeitures and 
penalties, trespass on real estate, trover, detinue, and replevin, criminal con¬ 
versation, or any other injury to the person, or rights of another not arising 
on contract, and relief from fraud, six years. Actions against sheriffs, cor¬ 
oners, constables in an official capacity, except for escapes, and actions for 
penalties and forfeitures, three years. Libel, slander, assault, battery, and 
false imprisonment, two years. Actions against officers for an escape, one 
year. In actions of account, the limitation begins to run from the last item 
proved on either side. Persons under disabilities, except infants, may bring 
action within one year after the removal of the same, provided the time is 
not extended more than five years ; and infants, one year after attaining 
majority. Where an action is defeated by any technicality, a new action 
may be brought within one year. Period of defendant’s absence from the 
State, if more than one year, is not included in the limitation. 

TENNESSEE. — Real actions, seven years. Actions against guardians, 
executors, administrators, sheriffs, clerks, and other public officers, on their 
official bonds, actions on judgments, and all other cases not expressly pro¬ 
vided for, ten years. Actions against the sureties of guardians, executors, 
administrators, sheriffs, clerks, and other public officers, and actions on 
other contracts not mentioned, six years. Injuries to real or personal 
property, detinue, and trover, three years. Libel, injuries to person, false 
imprisonment, malicious prosecution, seduction, breach of promise, and 
statutory penalties, one year . Slander, six months . A new action may be 


ABSTRA CT OF STA TUBES OF LI MIT A TIONS. 297 

begun within one year after the reversal or arrest of judgment in the origi¬ 
nal. Persons under disabilities may bring action within three years after 
removal of the same, unless the limitation is less than three years, in which 
case action must be brought within the time limited after such removal. 
Actions by a resident of the State against an executor, etc., must be brought 
within two years and six months after his appointment, by a non-resident 
within three years and six months. Period of defendant’s absence from 
the State is not included in limitation. Actions barred by the laws of the 
State where they accrued are barred here. 

TEXAS. — Real actions, against one in possession under color of title, 
three years. Five years ’ peaceable possession of real estate, cultivating 
and using the same, paying taxes thereon, and claiming under registered 
deed, not forged, gives good title. Ten years' peaceable possession, culti¬ 
vation, and enjoyment, without evidence of title, gives full title to one 
hundred and sixty acres, and to all beyond in actual possession. Judgments 
and suits for specific performance of agreement to convey land, ten years. 
Debt on written contract, by copartners for settlement of partnership 
accounts, mutual current accounts between merchants, and all other causes 
of action not specially enumerated, four years. Injuries to the property of 
another, conversion or detention of personal property, forcible entry and 
detainer of real estate, actions on open accounts, except between merchants, 
two years. Injuries to the person, character, or reputation of another, one 
year. Limitation does not run against persons under disability. 

UTAH. — Real actions, seven years. In case of disability, the limitation 
does not begin to run until the removal thereof. Judgments, five years. 
Contracts or obligations in writing, and actions for relief not otherwise 
specified, four years. Statute liabilities, other than penalties or forfeitures, 
trespass on real estate, detinue, replevin, conversion of personal property, 
and relief on the ground of fraud, dating from the discovery thereof, three 
years. Contracts and liabilities, not founded on written instruments, open 
accounts for goods, and actions against sheriffs, etc., two years. Statutory 
penalties and forfeitures, libel, slander, assault and battery, or false impris¬ 
onment, one year. Period of defendant’s absence from the Territory, is 
not included. New acknowledgment or promise must be in writing. 

VERMONT — Real actions and actions on covenants of seizin in deeds 
of land, fifteen years. Witnessed promissory notes, fourteen years. Judg¬ 
ments of courts of record, specialties, and covenants except of seizin, eight 
years. Debt on any contract, obligation, or liability, not under seal, or on 
judgments of courts not of record, debt for rent, actions of account, as¬ 
sumpsit, or case founded on any contract or liability; trespass on land, 
replevin, trover, and detinue, and actions on the case, except libel and slan¬ 
der, six years. Assault and battery, and false imprisonment, three years. 
Libel and slander, two years. Executors and administrators may bring 
actions which survive two years after death of the party entitled. Actions 
duly begun and failing by abatement, arrest, or reversal of judgment, may 


LIMITATIONS. 


298 

be brought again within one year. Time of absence from the State without 
known attachable property in the State is not computed in the limitation. 
Limitations in case of persons under disabilities begin to run from the re¬ 
moval of the same. New promise must be in writing. 

VIRGINIA. — Real actions, land east of the Alleghanies, fifteen years , 
west of the Alleghanies, ten years ; persons under disabilities, ten years 
after removal of the same, provided the whole period of limitation is not 
more than thirty years. Contracts and writings under seal, twenty years. 
Bonds of indemnity, bonds of executors, administrators, curators, guardians, 
sheriffs, clerks, or other fiduciary or public officers, ten years. Recognizances 
of bail in civil suits, three years , other recognizances, ten years. Contracts, 
in writing not under seal, and other contracts, except for articles charged in 
store account, on which action must be brought in two years, actions be¬ 
tween partners for settlement, and accounts concerning the trade of merchan¬ 
dise between merchant and merchant, and all personal actions for which 
no other limitation is prescribed, five years. Actions that do not survive, 
one year. Acknowledgments must be in writing. Persons under disabil¬ 
ities may bring actions within the time limited after the removal of their 
disabilities, provided it is within twenty years from the original accrual of 
the right. Actions failing by abatement, arrest, or reversal of judgment 
may be brought again within one year. 

WASHINGTON TERRITORY. — Real actions, ten years. Judgments, 
contracts in writing, actions for rents and profits or use and occupation of 
real estate, six years. Waste or trespass upon real estate, actions for tak¬ 
ing, detaining, or injuring personal property, or for the specific recovery 
thereof, or for injury to the person or rights of another, not specially enu¬ 
merated, contracts not in writing, relief on ground of fraud, actions against 
sheriffs, etc., except for escape, statute penalties and forfeitures to party 
aggrieved, seduction, and breach of promise of marriage, three years. Libel, 
slander, assault, and battery, false imprisonment, and penalties to the > Ter- 
ritory, two years. Escape, one year. Limitation does not run against 
parties under disability, until after the removal of the same. Causes of 
action arising in another State or Territory, between non-residents of this 
Territory, and barred by law there barred here also. New acknowledgment 
or promise must be in writing. 

WEST VIRGINIA. — Real property, ten years; persons under disabili¬ 
ties, five years after removal of the same, provided the whole limitation is 
not more than twenty years. Bonds of executors, administrators, guardians, 
sheriffs, or other public officers, ten years. Other instruments under seal, 
made prior to April, 1869, twenty years; made since April, 1869, ten years. 
Awards and contracts in writing not under seal, ten years. Other contracts, 
five years j except actions for articles charged in store account, which must 
be brought in three years. Current accounts, three years. Actions on 
recognizances, other than bail in a civil suit and judgments, ten years. 
Recognizance of bail in civil suit, three years. All other actions which 


ABSTRA CT OF ST A TUTES OF LIMIT A TIONS. 299 

survive, five years ; which do not survive, one year. Actions on judgments 
barred where rendered are barred here, and actions or contracts made to be 
performed in another State and barred there, are barred here also. Limita¬ 
tion does not run in favor of a resident of the State during his absence there¬ 
from or while absconding or concealing himself. New acknowledgment or 
promise must be in writing. 

WISCONSIN. — Real actions, twenty years ; persons under disabilities, 
five years after removal of the same. Judgments of courts of record of the 
State of Wisconsin and sealed instruments, when the cause accrues within 
the State, twenty years. Judgments of other courts of record and sealed 
instruments accruing without the State, ten years. Other contracts, obliga¬ 
tions, or liabilities, including actions on municipal bonds and coupons, 
six years. Actions against sheriffs, coroners, and constables, for acts done 
in their official capacity, except for escapes, three years. Statutory penalties 
and forfeitures, libel, slander, assault, battery, and false imprisonment, two 
years. Actions against sheriffs, etc., for escapes, one year. Persons under 
disabilities, except infants, may bring action after the disability ceases, pro¬ 
vided the period is not extended more than five years, and infants one year 
after coming of age. Actions by representatives of deceased persons, one 
year from death ; against the same, one year from granting letters testamen¬ 
tary or of administration. New promise must be in writing. 

WYOMING. — Real actions, twenty-one years. Bonds of executors, 
administrators, guardians, sheriffs, and other officers, all bonds required by 
statute, and causes of action not specially enumerated, ten years. Special¬ 
ties and contracts in writing, five years. Contracts not in writing, four 
years, but on all foreign claims judgments or contracts contracted or incurred 
before the debtor became a resident of the Territory, actions must be com¬ 
menced within two years after he establishes his residence in the Territory. 
Trespass on real estate, actions for taking, detaining, or injuring personal 
property, or for the specific recovery of the same, four years. Libel, slan¬ 
der, assault and battery, malicious prosecution, or false imprisonment, one 
year. Limitations in personal actions do not run against persons under dis¬ 
abilities until after the removal of the same. Time of defendants absence 
from the Territory or absconding or concealment is not reckoned. Actions 
on causes arising out of the Territory between non-residents and barred 
there, cannot be maintained here. New acknowledgment or promise must 
be in writing. 


300 


INTEREST AND USURY. 


CHAPTER XXIII. 

INTEREST AND USURY. 


SECTION I. 

WHAT INTEREST IS, AND WHEN IT IS DUE. 

Interest means a payment of money for the use of money. 
In most civilized countries the law regulates this ; that is, it 
declares how much money may be paid or received for the use 
of money ; and this is called legal interest; and if more is paid 
or agreed to be paid than is thus allowed, it is called usurious 
interest. By interest is commonly meant legal interest; and 
by usury, usurious interest. 

Interest maybe due, and may be demanded by a creditor, on 
either of two grounds. One, a bargain to that effect; the other, 
by way of damages for withholding money that is due. Indeed, 
it may be considered as now the settled rule, that wherever 
money is withheld which is certainly due, the debtor is to be 
regarded as having promised legal interest for the delay. And 
upon this implication, as on most others, the usage of trade, and 
the customary course of dealings between the parties, would 
have great influence. 

Thus, in New York, it was held, that, where it was known 
to one party that it was the uniform custom of the other to 
charge interest upon articles sold or manufactured by him after 
a certain time, the latter was allowed to charge interest accord¬ 
ingly. 

In general, we may say that interest is allowed bylaw as fol¬ 
lows : on a debt due by judgment of court, it is allowed from 
the rendition of judgment; and on an account that has been 
liquidated, or settled, from the day of the liquidation; for goods 
sold, from the time of the sale, if there be no credit, and if there 
be, then from the day when the credit expires ; for rent, from 
the time that it is due, and this even if the rent is payable other¬ 
wise than in money, but is not so paid; for money paid for 
another or lent to another, from the payment or loan. 



WHA T INTEREST IS AND WHEN IT IS DUE . 301 

Interest is not generally recoverable upon claims for unliqui¬ 
dated damages, nor in actions founded on tort. By unliqui¬ 
dated damages is meant damages not agreed on, and of an 
uncertain amount, and which the jury must determine. By 
torts is meant wrongs, or injuries inflicted. But although inter¬ 
est cannot be given under that name, in actions of this sort, 
juries are sometimes at liberty to consider it in estimating the 
damages. 

It sometimes happens that money is due, but not now pay¬ 
able ; and then the interest does not begin until the money is 
payable. As if a note be on demand, the money is always due, 
but it is not payable until demand; and therefore is not on 
interest until demand. But a note payable at a certain time, or 
after a certain period, carries interest from that time, whether it 
be demanded or not. 

The laws which regulate interest and prohibit usury are very 
various, and are not perhaps precisely the same in any two of 
our States. Formerly, usury was looked upon as so great an 
offence, that the whole debt was forfeited thereby. The law 
now, however, is—generally, at least—much more lenient. 
The theory that money is like any merchandise, worth what it 
will bring and no more, and that its value should be left to fix 
itself in a free market, is certainly gaining ground. In many 
States there are frequent efforts so to change the statutes of 
usury that parties may make any bargain for the use of money 
which suits them; but when they make no bargain, the law 
shall say what is legal interest. And, generally, the forfeiture 
is now much less than the whole debt. 

At the close of this chapter will be found a statement of the 
usury laws of the states. 

There is no especial form or expression necessary to make a 
bargain usurious. It is enough for this purpose if there be a sub¬ 
stantial payment, or promise of payment, of more than the law 
allows, either for the use of money lent, or for the forbearance 
of money due and payable. One thing, however, is certain: 
there must be a usurious intention, or there is no usury. That 
is, if one miscalculates, and so receives a promise for more than 
legal interest, the error may be corrected, the excess waived, 


INTEREST AND USURY. 


302 

and the whole legal interest claimed. But if one makes a bar¬ 
gain for more than legal interest, believing that he has a right to 
make such a bargain, or that the law gives him all that he claims, 
this is a mistake of law, and does not save the party from the 
effect of usury. 

It may be well to remark, that the law makes a very wide 
distinction between a mistake of fact and a mistake of law. 
Generally, it will not permit a party to be hurt by a mistake of 
fact; but it seldom suffers any one to excuse himself by a mis¬ 
take of law, because it holds that everybody should know the 
law, and because it would be dangerous to permit ignorance of 
the law to operate for any one’s benefit. 

The question has been much discussed, whether the use of 
the common tables which are calculated on the supposition that 
a year consists of 360 days, is usurious. In New York, it has 
been held that it is ; but in Massachusetts, and some other 
States, it is held that the use of such tables does not render the 
transaction usurious. We think this latter the better opinion. 

If a debtor requests time, and promises to pay for the forbear¬ 
ance legal interest, and as much more as the creditor shall be 
obliged to pay for the same money, this is not a usurious con¬ 
tract. And, even if usurious interest be actually taken, this, 
although strong evidence of an original usurious bargain and 
intent, is not conclusive, but may be rebutted by adequate proof 
or explanation. 

When a statute provides that a usurious contract is wholly- 
void, such a contract cannot become good afterwards ; and there¬ 
fore a note which is usurious, if it be therefore void by law in its 
inception, is not valid in the hands of an innocent indorsee. 
But it is otherwise where the statute does not declare the con¬ 
tract void on account of the usury. If a note, or any securities 
for a usurious bargain, be delivered up by the creditor and can¬ 
celled, and the debtor thereupon promises to pay the original 
debt and lawful interest, this promise is valid. 

New securities for old ones which are tainted with usury are 
equally void with the old ones, or subject to the same defence. 
Not so, however, if the usurious part of the original securities be 
expunged, and not included in the new ; or if the new ones are 


WHA T INTEREST IS AND WHEN IT IS DUE . 


303 

given to third parties, who were wholly innocent of the original 
usurious transaction. And if a debtor suffers his usurious debt 
to be sued, and a judgment recovered against him for the whole 
amount, it is then too late for him to take any advantage of the 
usury. 

So, if land or goods be mortgaged to secure a usurious debt, 
and afterwards conveyed to an innocent party, subject to such 
mortgage, the latter cannot set up the defence of usury, and 
thereby defeat an action to enforce the mortgage. 

Usurers resort to many devices to conceal their usury; and 
sometimes it is very difficult for the law to reach and punish 
this offence. A common method is for the lender of money to 
sell some chattel, or a parcel of goods, at a high price, the bor¬ 
rower paying this price in part as a premium for the loan. In 
England, it would seem from the reports to be quite common 
for one who discounts a note to do this nominally at legal rates, 
but to furnish a part of the amount in goods at a very high val¬ 
uation. In all cases of this kind, or rather in all cases where 
questions of this kind arise, the court endeavors to ascertain the 
real character of the transaction. Such a transaction is always 
suspicious, for the obvious reason that one who wants to borrow 
money is not very likely to desire at the same time to buy goods 
at a high price. But the jury decide all questions of this kind ; 
and it is their duty to judge of the actual intention of the par¬ 
ties from all the evidence offered. If that intention is substan¬ 
tially that one should loan his money to another, who shall 
therefore, in any manner whatever, pay to the lender more than 
legal interest, it is a case of usury. “ Where the real truth is 
a loan of money,” said Lord Mansfield, “the wit of man cannot 
find a shift to take it out of the statute.” If this great judge 
meant only that, whenever legal evidence shows the transaction 
to be a usurious loan, the law pays no respect whatever to any 
pretence or disguise, this is certainly true. But the wit of man 
does undoubtedly devise many “ shifts,” which the law cannot 
detect. There seems to be a general rule in these cases in ref¬ 
erence to the burden of proof; the borrower must first show 
that he took the goods on compulsion; and then it is for the 
lender to prove that no more than their actual value was received 
or charged for them. 


304 


INTEREST AND USURY. 


If one should borrow stock at a valuation much above the 
market rate, and agree to pay interest on this value for the use 
of the stock to sell or pledge, this would be usurious. 

One may lend his stock, and may, without usury, give the 
borrower the option to replace the stock, or to pay for it at even 
a high value, with interest. But, if he reserves this option to 
himself, the bargain is usurious, because it gives the lender the 
right to claim more than legal interest. So, the lender may 
reserve either the dividends or the interest, if he elects at the 
time of the loan ; but he cannot reserve the right of electing 
at a future time, when he shall know what the dividends are. 

A contract may seem to be two, and yet be but one, if the 
seeming two are but parts of a whole. Thus, if A borrows 
one thousand dollars, and gives a note promising to pay legal 
interest for it, and then gives another note for (or otherwise 
promises to pay) a further sum, in fact for no consideration but 
the loan, this is all one transaction, and it constitutes a usurious 
contract. 

But if there be a loan on legal terms, with no promise or 
obligation on the part of the borrower to pay any more, this 
might not be invalidated by a mere understanding that the 
borrower should, when the money was paid by him, make a 
present to the lender for the accommodation. And if, after 
a payment has been made, which discharged all legal obligation, 
the payer voluntarily adds a gift, this would not be usurious. 
But in every such case the question for a jury is, What was 
this additional transfer of money, in fact; was it a voluntary 
gift, or was it the payment of a debt ? If an honest gift, it was 
not usurious ; if a payment, it was usurious. 

A foreign contract, valid and lawful where made, may be 
enforced in a State in which such a contract, if made there, 
would be usurious. But if usurious where it was made, and, 
by reason of that usury, wholly void in that State, if it is put 
in suit in another State where the penalty for usury is less, it 
cannot be enforced under this mitigated penalty; but it is 
wholly void there also. 


A CHARGE FOR RISK OR FOR SERVICE. 


305 


SECTION II. 

A CHARGE FOR RISK OR FOR SERVICE. 

It is undoubtedly lawful for a lender to charge an extra 
price for the risk he incurs, provided that risk be perfectly dis¬ 
tinct and different from the merely personal risk of the debtor’s 
being unable to pay. If anything is paid for this last risk, it 
is certainly usury. 

So, one may charge for services rendered, for brokerage, or 
for rate of exchange, and may even cause a domestic loan or 
discount to be actually converted into a foreign one, so as to 
charge the exchange; and this would not be usurious. But 
here, as before, and indeed throughout the law of usury, it is 
necessary to remember that the actual intention, and not the 
apparent purpose or form of the transaction, must determine 
its character. So, if one lends money to be used in business, 
and lends it upon such terms that he becomes a partner in fact 
with those who use it, taking his share of the profits, and 
becoming liable for the losses, this is not usurious. 

So, if one enters into a partnership, and provides money for 
its business, and the other party is to bear all the losses, and 
also to pay the capitalist more than legal interest as his share 
of the profits, this is not usurious, because there is no loan, if 
there be in fact a partnership; for then there is a very impor¬ 
tant risk, as he becomes liable for all the debts of the partner¬ 
ship. 

The banks always get more than legal interest by their way 
of discounting notes and deducting the whole interest from the 
amount they give. This is perfectly obvious if we take an 
extreme case; as it a bank discounted a note of a thousand 
dollars at fifteen years, in Massachusetts, the bank would dis¬ 
count the interest of all the fifteen years; the borrower would 
receive one hundred dollars, and at the end of fifteen years he 
would pay back one thousand dollars, which is equivalent to 
paying nine hundred dollars for the use of one hundred for 
fifteen years, whereas the legal interest would be but ninety 
dollars. But this method is now established by usage and 
sanctioned by law. It should, however, be confined to dis* 
20 


INTEREST AND USURY. 


306 

counts of negotiable paper, not having a very long time to run. 
For the rule is founded upon usage, and the usage goes no 
further. 

SECTION III. 

THE SALE OF NOTES. 

There are, perhaps, no questions in relation to interest and 
usury of more importance than those which arise from the sale 
of notes or other securities. In the first place, there is no 
doubt whatever that the owner of a note has as good a right to 
sell it for the most he can get, as he has to sell any goods or 
wares which he owns. There is here no question of usury, 
because there is no loan of money, nor forbearance of debt. 
But, on the other hand, it is quite as certain that if any person 
makes his own note, and sells that for what he can get, this, 
while in appearance the sale of a note, is in fact the giving of 
a note for money. It is a loan and a borrowing, and nothing 
else. And if the apparent sale be for such a price that the 
seller pays more than legal interest, or, in other words, if the 
note bear interest and is sold for less than its face, or is not on 
interest, and more than interest is discounted, it is a usurious 
transaction. Supposing these two rules to be settled, the 
question in each case is, under which of them does that case 
come, or to which of them does it draw nearest. 

We are not aware of any general principle so likely to be of 
use in determining these questions as this: if the seller of a 
note acquired it by purchase, or if it is his for money advanced 
or lent by him to its full amount, he may sell it for what he can 
get; but if he be the maker of the note, or the agent of the 
maker, and receives for the note less than would be paid him if 
only a lawful discount were made, it is a usurious loan. In 
other words, the first holder of a note (and the maker of a note 
is not and cannot be its first holder) must pay to the maker the 
face of the note, or its full amount. And after paying this, he 
may sell it, and any subsequent purchaser may sell it as 
merchandise. The same rule must apply to corporations, and 
all other bodies or persons who issue their notes or bonds on 
interest. If sold by brokers for them, for less than the full 


COMPOUND INTEREST. 


30 7 

amount, it is usurious. Nor can such notes come into the 
market free from the taint and the defence of usury, unless the 
first party who holds them pays for them their full value. 

But then comes another question. If a note be offered for 
sale, and be sold for less than its face, and the purchaser sup¬ 
poses himself to buy it from an actual holder and not from the 
maker, can the maker interpose the defence that it was actually 
usurious, on the ground that the seller was only his agent ? I 
should say that he could not; that there can be no usury unless 
this is intended; and that the guilty intention of one party 
cannot affect another party who was innocent. 

I should say, also, that one who, having no interest in a 
note, indorses or guarantees it for a certain premium, will be 
liable for its face; he does not now add his credit to the value 
of his property and sell both together, as where he indorses a note 
which he holds himself, but sells his credit alone. This trans¬ 
action I should not think usurious. And if it was open to no 
other defence, as fraud, for example, and was in fact what it 
purported to be, and not a mere cover for a usurious loan, we 
know no good reason why such indorser or guarantor should 
not be held liable to the full amount of his promise. 

SECTION IV. 

COMPOUND INTEREST. 

Compound interest is sometimes said-to be usurious ; but it 
is not so; and even those cases which speak of it as “ savoring 
of usury ” may be thought to go too far, unless every hard bar¬ 
gain for money is usurious. As the authorities now stand, 
however, a contract or promise to pay money with compound 
interest cannot, generally, be enforced. On the other hand it 
is neither wholly void, nor attended with any penalty, as it would 
be if usurious; but is valid for the principal and simple interest 
only. 

Nevertheless, compound interest is sometimes recognized 
as due by courts of law, as well as of equity; and sometimes, 
too, by its own name. Thus, if a trustee be proved to have 
had the money of the party for whom he is trustee (who is 


INTEREST AND USURY. 


308 

called in law his cestui que trust ) for a long time, without 
accounting for it, he may be charged with the whole amount, 
reckoned at compound interest, so as to cover his unlawful 
profits. If compound interest has accrued under a bargain for 
it, and been actually paid, it cannot be recovered back, as money 
usuriously paid may be. And if accounts are agreed to be 
settled by annual rests, which is in fact compound interest, or 
are actually settled so in good faith, the law sanctions this. Some¬ 
times, in cases of disputed accounts, the courts direct this 
method of settlement. 

Where money due on interest has been paid by sundry 
instalments, the mode of adjusting the amount which has the 
bast authority, and the prevailing usage in its favor, seems to be 
this : Compute the interest due on the principal sum to the time 
when a payment, either alone or in conjunction with preceding 
payments, shall equal or exceed the interest due on the princi¬ 
pal. Deduct this sum, and upon the balance cast interest as 
before, until a payment or payments equal the interest due; 
then deduct again, and so on. 

ABSTRACTS OF THE USURY LAWS OF THE STATES 
AND TERRITORIES. 

These laws are stated from the latest information, but are constantly undergoing change, and are 
likely to be so until restrictions upon interest are abolished, as they are now in some States. 

ALABAMA.— Legal interest, eight per cent. Plea of usury defeats 
recovery of all interest. 

ARIZONA.— Legal interest, ten per cent., but parties may agree in 
writing for any rate. 

ARKANSAS. — Legal interest, six per cent., but parties may contract 
for any rate not exceeding ten per cent. Contracts for more than ten per 
cent, are void, both as to principal and interest. 

CALIFORNIA. — Legal interest, seven per cent., but parties may agree 
in writing for any rate. 

CANADA, DOMINION OF. — Legal interest, generally six per cent., 
with the right to agree on what parties will, but with exceptions in different 
provinces, especially as to banks and other corporations, and loans on differ¬ 
ent kinds of security. 


ABSTRACTS OB' USURY LAWS. 


309 

COLORADO. — Legal interest, ten per cent., but parties may agree upon 
any rate. 

CONNECTICUT. — Legal interest, six per cent., in the absence of any 
agreement to the contrary, and no more can be recovered. 

DAKOTA. — Legal interest, seven per cent Parties may contract for a 
higher rate, not exceeding twelve per cent. Penalty for usury, forfeiture of 
all interest. Usury is also a misdemeanor punishable by fine or imprison¬ 
ment, or both. 

DELAWARE. —Legal interest, six per cent. Penalty for taking more, 
forfeiture of the money lent — half to the prosecutor, half to the State. 

DISTRICT OF COLUMBIA. — Legal interest, six per cent. Ten per 
cent, may be paid on written agreement. Any excess forfeits the whole 
interest. 

FLORIDA. — Legal interest, eight per cent But the usury laws are 
expressly abolished. 

GEORGIA. — Legal interest, seven per cent. Not exceeding eight per 
cent, may be recovered if agreed upon in writing. Excess forfeited. 

IDAHO. — Legal interest, ten per cent. Parties may agree in writing 
for any rate not exceeding one and one-half per cent, per month. Penalty 
for greater rate, three times amount so paid, and liability to fine and impris¬ 
onment. 

ILLINOIS.—Legal interest, six per cent Parties may agree upon 
eight per cent, in writing. If more is agreed on or is taken upon any con¬ 
tract, verbal or written, only the principal can be recovered. 

INDIANA. — Legal interest, six per cent. Eight per cent may be 
agreed upon in writing. It may be taken for the period of a year or less in 
advance. Excess cannot be recovered, and, if paid, shall be considered as 
paid on account of the principal. 

IOWA. — Legal interest, six per cent. Parties may agree in writing for 
ten per cent. If contract be for more, the creditor recovers only the princi¬ 
pal, and ten per cent, on the amount of the contract is forfeited to the State. 

KANSAS. — Legal interest, seven per cent Parties may stipulate in 
writing for any rate not exceeding twelve per cent. Usurious payments 
held to be made on account of principal, and twelve per cent, interest. 

KENTUCKY. — Legal interest, six per cent. Extra interest forfeited; 
if paid, may be recovered back. 

LOUISIANA. —Legal interest, five per cent. Eight per cent, may be 
stipulated, and a higher rate may be collected if embodied in the face of the 
obligation, or by way of discount; but any agreement for more than eight 
per cent, after the maturity of the obligation forfeits the entire interest. 

MAINE.-—Any rate of interest may be agreed on, but, in the absence 
of any express agreement, the rate shall be six per cent. 


3io 


INTEREST AND USURY. 


MARYLAND. — Legal interest six per cent. Excess forfeited. 

MASSACHUSETTS. — Legal interest, six per cent. Any rate of inter¬ 
est or discount may be made by agreement, but if greater than six per cent., 
it must be in writing. 

MICHIGAN. — Legal interest, seven per cent. Parties may agree in 
writing upon any rate not exceeding ten per cent. If more interest is agreed 
for, only legal interest recoverable. 

MINNESOTA. — Legal interest, seven per cent. Parties may agree in 
writing for ten per cent. Excess, if paid, may be recovered. Usurious con¬ 
tracts are void, except as to boiia fide purchasers of negotiable paper before 
maturity. 

MISSISSIPPI. — Legal interest, six per cent. Parties may agree in 
writing for ten per cent. If more be agreed for, the excess is not collectible 
and on contracts made after Nov. i, 1880, the whole interest will be for¬ 
feited. 

MISSOURI. —Legal interest, six percent.; but parties may agree in 
writing for any rate not to exceed ten per cent. If more be taken or agreed 
for, the creditor recovers only the principal, and interest at ten per cent, is 
forfeited to the State. Interest may be compounded once a year by written 
contract. 

MONTANA. — Legal interest, ten per cent. There are no usury laws. 

NEBRASKA. — Legal interest, seven per cent. Parties may agree on 
any rate not exceeding ten per cent, in advance. On proof of illegal inter¬ 
est, plaintiff shall recover only principal. 

NEVADA. — Legal interest, ten per cent. But parties may agree in 
writing for any rate. 

NEW HAMPSHIRE. — Legal interest, six per cent. A person re¬ 
ceiving more forfeits threefold the excess; but contracts are not invalidated 
by securing or taking more. Exceptions as to certain contracts of farmers 
and merchants. 

NEW JERSEY. —Legal interest, six per cent. On usurious contract, 
principal only can be recovered. 

NEW MEXICO. —Legal interest, six per cent., but parties may agree 
upon any rate. If more be paid, double the amount so paid may be recov¬ 
ered. Usury is also punishable by fine. 

NEW YORK. —Legal interest, six per cent. A contract for more than 
legal interest is wholly void. If more than legal interest is paid, it may be 
recovered back within a year by payer, or within the next three years by the 
overseers of the poor.—No corporation can interpose the defense of usury; 
nor can a joint-stock company having the powers of a corporation. When 
advances of five thousand dollars or more are made on bills of lading, nego¬ 
tiable instruments, etc., parties may agree in writing on any rate of compen¬ 
sation. Usury is a misdemeanor punishable by fine or imprisonment. 


ABSTRACTS OB USURY LA WS. 


311 

NOUTH CAROLINA —Legal interest, six per cent. Eight per cent_ 
may be recovered for loan of money by written agreement. On usurious 
contracts no interest is recoverable. 

OHIO.—Legal interest, six per cent. Any rate not exceeding eight per 
cent, may be agreed upon in writing. Excess cannot be recovered. Banks 
can charge or take by discount only six per cent. Railroad companies may 
borrow money at seven per cent. 

OREGON.—Legal interest, eight per cent. Parties may agree for ten 
per cent. Usurious interest works a forfeiture of the principal and interest. 

PENNSYLVANIA.—Legal interest, six per cent. Excess cannot be 
recovered. If paid, may be recovered back if sued for within six months. 
Commission merchants and agents may contract with parties out of the State 
for seven per cent. 

RHODE ISLAND. —Legal interest, six per cent. Any higher rate may 
be agreed upon. 

SOUTH CAROLINA.—Legal interest, seven per cent. Parties may 
agree in writing for ten per cent. Usury works a forfeiture of entire inter¬ 
est. If usurious interest be paid, double the amount may be recovered. 

TENNESSEE. — Legal interest, six per cent. If usurious interest be 
paid it may be recovered. Usury is a misdemeanor. 

TEXAS. — Legal interest, eight per cent. Parties may agree in writing 
for twelve per cent. If more than this is agreed for, no interest can be 
recovered. 

UTAH. — Legal interest, ten per cent. Any rate maybe agreed on in 
writing. 

VERMONT. — More than six per cent, prohibited, and a person payjng 
more may recover excess; but this is not to extend to usage of farmers or 
merchants, as in New Hampshire. 

VIRGINIA. — Legal interest, six per cent. If more be charged, no 
interest can be recovered. 

WASHINGTON TERRITORY. — Legal interest, ten per cent. Any 
rate may be agreed upon in writing. 

WEST VIRGINIA.—Legal interest, six per cent. Contracts for a 
greater amount are void as to the excess. Certain corporations are excepted. 

WISCONSIN.—Legal interest, seven per cent.; but parties may agree 
in writing upon a rate not exceeding ten per cent. No interest can be recov¬ 
ered on usurious contracts, and, if excessive interest be paid, the amount 
thereof may be recovered back. 

WYOMING.—Legal interest, twelve per cent. Any rate may be agreed 
upon in writing. 


312 


THE LAW OF PLACE . 


CHAPTER XXIV. 

THE LAW OF PLACE. 


SECTION I. 

WHAT IS MEANT BY THE LAW OF PLACE. 

If either of the parties to a contract is not at home, or if 
both are not at the same home, when they enter into the con¬ 
tract, or if it is to be executed abroad, or if it comes into litiga¬ 
tion before a foreign tribunal, then the rights and the obligations 
of the parties may be affected either by the law of the place 
of the contract, or by the law of the domicil or home of a 
party, or by the law of the place where the thing is situated 
to which the contract refers, or by the law of the tribunal 
before which the case is litigated. All of these are commonly 
included in the Latin phrase lex loci> or, as the phrase is trans¬ 
lated, the Law of Place. 

It is obvious that this law must be of great importance 
wherever citizens of distinct nations have much commercial 
intercourse with each other. In this country it has an especial 
and very great importance, from the circumstance that, while 
the citizens of the whole country have at least as much business 
connection with each other as those of any other nation, our 
country is composed of thirty-eight separate and independent 
sovereignties, which are, for most commercial purposes, regarded 
by the law as foreign to each other. 

SECTION II. 

THE GENERAL PRINCIPLES OF THE LAW OF PLACE. 

The general principles upon which the law of place depends 
are four. First, every sovereignty can bind, by its laws, all per- 



GENERAL PRINCIPLES OF THE LAW OF PLACE. 3 ^ 

sons and all things within the limits of the State. Second, no 
law has any force or authority of its own, beyond those limits. 
Third, by the comity or courtesy of nations,—aided in our case 
as to the several States, by the peculiar and close relation 
between the States, and for some purposes by a constitutional 
provision,—the laws of foreign States have a qualified force and 
influence. 

The fourth rule is perhaps that of the most frequent appli¬ 
cation. It is, that a contract which is not valid where it is made 
is valid nowhere else ; and one which is valid where it is made is 
valid everywhere. Thus a contract made in Massachusetts, and 
there void because usurious, was sued in New Hampshire and 
held to be void there, although the law of New Hampshire would 
not have avoided it if it had been made there. But courts do 
not take notice of foreign revenue laws, and will enforce foreign 
contracts made in violation of them. If contracts are made 
only orally, where by law they should be in writing, they 
cannot be enforced elsewhere where writing is not required ; 
but if made orally where writing is not required, they can 
be enforced in other countries where such contracts should be 
in writing. The rule, that a contract which is valid where it 
is made is valid everywhere, is applicable to contracts of mar¬ 
riage. 

As contracts relate either to movables or immovables, or, to 
use the phraseology of our own law, to personal property or to 
real property, the following distinction is taken. If the contract 
refers to personal property (which never has a fixed place, and 
is therefore called, in some systems of law, movable property), 
the place of the contract governs by its law the construction 
and effect of the contract. But if the contract refers to real 
property, it is construed and applied by the law of the place 
where that real property is situated, without reference, so far as 
the title is concerned, to the law of the place of the contract. 
Hence, the title to land can only be given or received as the law 
of the place where the land is situated requires and determines. 
And it has been said that the same rule may properly apply to 
all other local stock or funds, although of a personal nature, or 
so made by the local law, such as bank stock, insurance stock, 


3 H 


THE LA IV OF PLACE. 


manufacturing stock, railroad shares, and other incorporeal 
property, owing its existence to, or regulated by peculiar local 
laws; and therefore no effectual transfer can be made of such 
property, except in the manner prescribed by the local regula¬ 
tions. 

As to the capacity of a person to enter into contracts, it is 
undoubtedly the general rule, that this is determined by the law 
of his domicil; and whatever that permits him to do he may do 
anywhere. 

SECTION III. 

THE PLACE OF THE CONTRACT. 

A contract is made when both parties agree to it, and not 
before. It is therefore made where both parties agree to it, if 
this is one place. But if the contract be made by letter, or by 
separate signatures to an instrument, the contract is then made 
where that signature is put to it, or that letter is written, which 
in fact completes the contract. But this rule is subject to a 
very important qualification, when the contract is made in one 
place, and is to be performed in another place ; for then, in 
general, the law of this last place must determine the force and 
effect of the contract, for the obvious and strong reason, that 
parties who agreed that a certain thing should be done in a 
certain place intended that a thing should be done there, 
which was lawful there, and therefore bargained with refer¬ 
ence to the laws of the place, not in which they stood, but in 
which they were to act. This principle has been applied to 
an ante-nuptial contract, and it was held, that when parties 
marry in reference to the laws of another country as their 
intended domicil, the law of the intended domicil governs the 
construction of their marriage contract as to the rights of per¬ 
sonal property. 

But, for many commercial transactions, both of these rules 
seem to be in force; or rather to be blended in such a way as to 
give the parties an option as to what shall be the place of the 
contract, and what the rule of law which shall apply to it. Thus, 
a note written in New York, and expressly payable in New York, 
is, to all intents and purposes, a New York note; and if more 


DOMICIL. 


315 

than seven per cent, interest was promised, it would be usurious, 
whatever was the domicil of the parties. If made in New York, 
and no place of payment is expressed, it is payable and may be 
demanded anywhere, but would still be a New York note. But 
if made in New York, but expressly payable in Boston (where 
any amount of interest may be agreed for), and promised to pay 
ten per cent, interest, when payment of the note was demanded 
in Boston, the promise of interest would be held valid. So, if 
the note were made in New York, payable in Boston, and prom¬ 
ising to pay ten per cent, interest, it would not be usurious. 

In other words, if a note is made in one place, but is payable 
in another, the parties have their option to made it bear the 
interest which is lawful in either place. 

If the contract be entered into for money, and is made in one 
place but is payable at another place on a day certain, and no 
interest be stipulated, and payment be delayed, interest by way 
of damages shall be allowed, according to the law of the place 
of payment, where the money may be supposed to have been 
required by the creditor for use, and where he might be supposed 
to have borrowed money to supply the deficiency thus occurring, 
and to have paid the rate of interest of that country. If a note 
made in New York and payable in Massachusetts were demanded 
in Massachusetts and unpaid, and afterwards put in suit in Mas¬ 
sachusetts, and personal service made on the promisor there, I 
should say that any interest which it bore should be recovered, 
provided it were lawful in Massachusetts. And indeed, generally, 
that such a note, being made in good faith, might always bear 
any interest lawful where it was payable. But a note made in 
a State where the law permitted only alow interest, and intended 
in fact to be paid in that State, but written payable in some 
State permitting higher interest, merely to get this higher inter¬ 
est, could not by this trick escape the usury laws of the State 
where it was made, and get the higher interest. 

SECTION IV. 

DOMICIL. 

It is sometimes very important to determine where a person 
has his domicil, or Home. In general, it is his residence; or 


THE LA W OF PI.A CE. 


316 

that country in which he permanently resides. He may change 
it by a change of place both in fact and intent, but not by either 
alone. Thus, a citizen of New York, going to London and 
remaining there a long time, but without the intention of relin¬ 
quishing his home in New York, does not lose that home. 
And, if he stays in New York, his intention to live and remain 
abroad does not affect his domicil until he goes in fact. 

He may have his legal domicil in one place and yet spend a 
very large part of his time in another. But he cannot have 
more than one domicil. His words or declarations are not the 
only evidence of his intent; and they are much stronger evi¬ 
dence when against his interest than when they are in his favor. 
Thus, one goes from Boston to England. If he goes intending 
not merely to travel, but to change his residence permanently, 
and not to return to this country unless as a visitor, he changes 
his domicil from the day that he leaves this country. Let us 
suppose, however, that he is still regarded by the assessors as 
residing in Boston, although travelling abroad, and is heavily 
taxed accordingly. If he can prove that he has abandoned his 
original home, he escapes from the tax which he must other¬ 
wise pay. Now, his declarations that he has no longer a home 
here, and that his residence is permanently fixed in England, and 
the like, would be very far from conclusive in his favor, and could 
indeed be hardly received as evidence at all, unless they were 
confirmed by facts and circumstances. But if it could be shown 
that he had constantly asserted that he was still an American, 
that he had no other permanent residence, no home but that 
which he had temporarily left as a traveller, such declarations 
would be almost conclusive against him. In general, such a 
question would be determined by all the words and acts, the 
arrangement of property at home, the length and the char¬ 
acter of the residence abroad, and all the acts and circumstances 
which would indicate the actual intention and understanding of 
the party. 

Two cases have occurred in the city of Boston which illus¬ 
trate this question. In one, a citizen of Boston, who had been at 
school in the city of Edinburgh when a boy, and formed a pre¬ 
dilection for that place as a residence, and had expressed a 


DOMICIL. 


317 


determination to reside there if he ever should have the means 
of so doing, removed with his family to that city in 1836, declar¬ 
ing, at the time of his departure, that he intended to reside 
abroad, and that, if he should return to the United States, he 
should not live in Boston. He resided in Edinburgh and vicin¬ 
ity, as a housekeeper, taking a lease of an estate for a term of 
years, and endeavored to engage an American to enter his 
family for two years as instructor of his children. Before he left 
Boston he made a contract for the sale of his mansion-house 
and furniture there, but shortly afterward procured said con¬ 
tract to be annulled (assigning as his reason therefor, that, in 
case of his death in Europe, his wife might wish to return to 
Boston), and let his house and furniture to a tenant. Held, that 
he had changed his domicil, and was not liable to taxation as an 
inhabitant of Boston in 1837. the other case, a native inhab¬ 
itant of Boston, intending to reside in France with his family, 
departed for that country in June, 1836, and was followed by 
his family about three months afterwards. His dwelling-house 
and furniture were leased for a year, and he hired a house for a 
year in Paris. At the time of his departure he intended to 
return and resume his residence in Boston, but had not fixed 
on any time for his return. He returned in about sixteen 
months, and his family in about nine months afterwards. Held, 
that he continued to be an inhabitant of Boston, and that he was 
rightly taxed there during his absence, for his person and per¬ 
sonal property. This last case was distinguished from the for¬ 
mer by the different intent of the parties upon their departure 
from home. 

It is a general rule, that, if one has a domicil, he retains 
it until he acquires another. Thus, if a seaman, without 
family or property, sails from the place of his nativity, which 
may be considered his domicil of origin, although he may 
return only at long intervals, or even be absent for many years, 
yet, if he does not, by some actual residence or other 
means, acquire a domicil elsewhere, he retains his domicil of 
origin. 

It seems to be agreed that one may dwell for a consider¬ 
able time, and even regularly during a large part of the year. 


THE LA W OF SHIPPING. 


318 

in one place, or even in one State, and yet have his domicil in 
another. 

A woman marrying takes her husband’s domicil, and changes 
it with him. A minor child has the domicil of his father, or of 
his mother if she survives his father; and the surviving parent, 
with whom a child lives, by changing his or her own domicil in 
good faith, changes that of the child. And even a guardian has 
the same power. 


CHAPTER XXV. 

THE LAW OF SHIPPING. 


SECTION I. 

THE OWNERSHIP AND TRANSFER OF SHIPS. 

The Law of Shipping may be considered under three divis¬ 
ions. First, as to ownership and transfer of ships. Second, as 
to the employment of ships as carriers of goods, or of passen¬ 
gers, or both. Third, as to the navigation of ships. I begin 
with the first topic. 

Ships are personal property; or, in other words, a ship is a 
chattel; and yet its ownership and transfer are regulated in this 
country by rules quite analogous to those which apply to real 
property. 

The Constitution of the United States gives to Congress the 
power to enact laws for the regulation of commerce. In execu¬ 
tion of this power, acts were passed in 1792, and immediately 
after, which followed substantially the Registry and Navigation 
Laws of England, some of which had been in force about a cen¬ 
tury and a half. The English laws were intended to secure 
English commerce to English men and English ships; and it 
was supposed that the commercial prosperity of England was 
in a great measure due to them. The laws on this subject now 
in force will be found in the Revised Statutes of the United 
States, § 4,131 et seq. 

To secure the evidence of the American character of a 
vessel, the statutes provide for an exact system of registra¬ 
tion in the custom-house. There is no requirement of regis- 




THE OWNERSHIP AND TRANSFER OF SHIPS. 


319 

tration. The law does not say that a ship shall or must be 
registered, but that certain ships or vessels may be ; and, if they 
are registered, they shall have certain privileges. And the dis¬ 
advantage of being without registry operates as effectually to 
make registration universal, as a positive requirement with a 
heavy penalty could do. 

The ships which may be registered are those already regis¬ 
tered December 31st, 1792, under the act of September, 1789; 
those built within the United States, and owned wholly by citi¬ 
zens thereof; and those captured and condemned as prizes, or 
adjudged forfeited by violation of law, if at the time of registry 
they are owned wholly by citizens of this country. No ship 
can be registered if an owner or part-owner usually resides 
abroad, although he is a citizen, unless he is a consul of the 
United States, or agent for, and a partner in a mercantile house 
established and doing business here; nor if the master be not 
a citizen of the United States; nor if the owner or part- 
owner be a naturalized citizen, and reside in the country whence 
he came more than a year, or in any foreign country more than 
two years, unless he be consul or public agent of the United 
States. But a ship which has lost the benefits of registry by 
the non-residence of an owner, in such a case may be regis- 
tered anew if she become the property of a resident citizen, 
by bond fide purchase; nor can a ship be registered which 
has been, at any time, the property of an alien, unless she 
becomes the property of the original owner or his represen¬ 
tative. 

Sometimes Congress, by special acts, permits the registra¬ 
tion, as an American ship, of a vessel which has become, by 
purchase, American property. If a registered American ship be 
sold or transferred, in whole or in part, to an alien, the cer¬ 
tificate of registry must be delivered up, or the vessel is 
forfeited; but if, in case of a sale in part, it can be shown that 
any owner of a part not so sold was ignorant of the sale, his 
share shall not be subject to such forfeiture. As soon as a reg¬ 
istered vessel arrives from a foreign port, her documents must 
be deposited with the collector of the port of arrival, and the 
owner, or, if he does not reside within the district, the master, 


320 


THE LA W OF SHIPPING . 


must make oath that the register contains the names of all 
persons who are at that time owners of the ship, and at the 
same time report any transfer of the ship, or of any part, that 
has been made within his knowledge since the registry; and 
also declare that no foreigner has any interest in the ship. If 
a register be issued fraudulently, or with the knowledge of the 
owners, for a ship not entitled to one, the register is not only 
void, but the ship is forfeited. If a new register is issued, the 
old one must be given up ; but where there is a sale by process 
of law, and the former owners withhold the register, the Secre¬ 
tary of the Treasury may authorize the collector to issue a new 
one. If a ship be transferred while at sea, or abroad, the old 
register must be given up, and all the requirements of law, as 
to registry, etc., must be complied with, within three days after 
her arrival at the home port. 

Important exclusive privileges have been granted to regis¬ 
tered vessels of the United States. Some of these, relating to 
foreign commerce, have since been withdrawn, but Rev. Stat. of 
U. S., § 4347 still provides that no merchandise shall be carried 
from port to port in the United States, by any foreign vessel, 
unless it formed a part of its original cargo. 

A ship that is of twenty tons burden, to be employed in the 
fisheries, or in the coasting trade, need not be registered, but 
must be enrolled and licensed accordingly. If under twenty 
tons burden, she need only be licensed. If licensed for the 
fisheries, she may visit and return from foreign ports, having 
stated her intention of doing so, and being permitted by the 
collector. And if registered, she may engage in the coasting 
trade or fishery, and if licensed and enrolled, she may become a 
registered ship, subject to the regulations provided for such 
cases. 

A ship that is neither registered nor licensed and enrolled 
can sail on no voyage with the privilege or protection of a 
national character or national papers. If she engages in foreign 
trade, or the coasting trade, or fisheries, she is liable to for¬ 
feiture; and if she have foreign goods on board, must at all 


THE TRANSFER OF PROPERTY IN A SHIP . 


321 


events pay the tonnage duties leviable on foreign ships. In 
these days, no ship engaged in honest business, and belonging 
to a civilized people, is met with on the ocean, without having 
the regular papers which attest her nationality, unless she has 
lost them by some accident. 

SECTION II. 

THE TRANSFER OF PROPERTY IN A SHIP. 

Revised Statute, § 4170, provides, that, “in every case 
of sale or transfer, there shall be some instrument in writing, in 
the nature of a bill of sale, which shall recite at length the said 
certificate; otherwise the said ship or vessel shall be incapable 
of being registered anew.” It follows, therefore, that a merely 
oral transfer, although for valuable consideration, and followed 
by possession, gives the transferee no right to claim a new 
register setting forth his ownership. But this is all. There is 
nothing in this statute to prevent the property from passing to 
and vesting in such transferee. It is, however, unquestionably 
a principle of the maritime law generally, that property in a ship 
should pass by a written instrument. And as this principle 
seems to be adopted by the statute, the courts have sometimes 
almost denied the validity of a merely parol transfer. The 
weight of authority and of reason is, however, undoubtedly in 
favor of the conclusion stated by Judge Story, that “the reg¬ 
istry acts have not, in any degree, changed the common law as 
to the manner of transferring this species of property.” It 
would follow, therefore, that such transfer would be valid, and 
would pass the property. 

Rev. Stat., § 4192, provides “that no bill of sale, mortgage, 
hypothecation, or conveyance of any vessel or part of any vessel 
of the United States, shall be valid against any person other 
than the grantor or mortgagor, his heirs and devisees, and per¬ 
sons having actual notice thereof; unless such bill of sale, 
mortgage, hypothecation, or conveyance be recorded in the office 
of the collector of the customs where such vessel is registered or 
21 


322 


THE LA W OF SHIPPING. 


enrolled.” Then follows an exception in favor of liens by bot¬ 
tomry, and in subsequent sections are provisions for recording 
by the collector, and giving certificates, etc. 

This statute has no effect, that I perceive, upon oral trans¬ 
fers, excepting that, as they cannot be recorded, their operation 
is limited to the grantors and those who have actual notice. 
Where the transfer is by bill of sale, the record of this, under 
the late statute, is notice to all the world. But in most of our 
States there are already provisions for the record of mortgages 
of personal property, and the question arises how these are 
affected by this statute of the United States. I should say that 
it controlled and superseded the State statute, so as to make 
that unnecessary and ineffectual; and therefore a record in the 
custom-house only would be sufficient, and a record under the 
State Law would affect only those who had actual knowledge 
of it. 

As a ship is a chattel, a transfer of it should be accompanied 
by a delivery of possession. Actual delivery is sometimes im¬ 
possible where a ship is at sea; and the statute of 1850 makes 
the record of the transfer equivalent to change of possession. 
If there be no record, possession should be taken as soon as 
possible; and prudence would still require the same course in 
case of transfer by writing and record. 

By the word “ship,” and still more by the phrase “ship and 
her appurtenances,” or “apparel,” or “furniture,” everything 
would pass which was distinctly connected with the ship, and is 
on board of her, and fastened to her if that be usual, and needed 
for her navigation or for her safety. Kentledge, a valuable kind 
of permanent ballast, has been held to pass with the ship; so 
have a rudder and cordage prepared for a vessel, but not yet 
attached to her, and not quite finished; and so would a boat, 
anchors, etc., generally. But the answer to the question, What 
is part of the ship? must always depend somewhat upon the 
words of the instrument, and upon the circumstances of the case 
and the intention of the parties. 

A sale by the decree of any regular court of admiralty, with 
due notice to all parties, and with proper precautions to protect 
the interests cf all, and to guard against fraud or precipitancy. 


PART-OWNERS. 


323 

would undoubtedly be acknowledged by courts of admiralty of 
every other nation as transferring the property effectually. 

SECTION III. 

PART-OWNERS. 

Two or more persons may become part-owners of a ship, in 
either of three ways. They may build it together, or join in 
purchasing it, or each may purchase his share independently of 
the others. In either case their rights and obligations are the 
same. 

If the register, or the instrument of transfer, or other equiv¬ 
alent evidence, do not designate specific and unequal pro¬ 
portions, they will be presumed to own the ship in equal shares. 

Part-owners are not necessarily or usually partners. But a 
ship, or any part of a ship, may constitute a part of the stock or 
capital of a copartnership; and then it will be governed, in all 
respects, by the law of partnership. 

A part-owner may at any time sell his share to whom he will. 
But he cannot sell the share of any other part-owner, without 
his authority. If he dies, his share goes to his representatives, 
and not to the surviving part-owners. 

A majority of the part-owners may, generally, manage and 
direct the employment of the property at their discretion. But 
a court of admiralty will interfere and do justice between them, 
and prevent either of the part-owners from inflicting injury upon 
the others. 

One part-owner may, in the absence of the rest, and without 
prohibition from them, manage the ship, as for himself and for 
them. And the contracts he enters into, in relation to the 
employment or preservation of the ship, bind all the part-owners 
in favor of an innocent third party. 

In general, all the part-owners are liable, each one for the 
whole amount, for all the repairs of a ship, or for necessaries 
actually supplied to her, in good faith. If one pays his part of 
what is due, or even more than his share, and it is agreed be¬ 
tween him and the creditor that he shall not be held further, 
still, if the others do not pay, he must pay, unless there is a 


324 


THE LA W OF SHIPPING. 


better consideration for the promise not to call on him than his 
merely paying a part of what he was legally bound to pay; for 
where a man is bound to pay all, his paying a part is no consid¬ 
eration whatever for a promise to him. If he had a discharge 
under seal, it might protect him at law, but would not in admi¬ 
ralty, unless the circumstances of the case made this just. 

If it can be clearly shown, however, that especial credit was 
given, and intended to be given, to one part-owner personally, 
to the exclusion of the others, then the others cannot be holden. 
If the goods were charged to “ship” so and so, or to “ship 
and owners,” this would tend strongly to show that it was 
intended to supply the goods on the credit of all the owners. 
If charged to some one owner alone, this would not absolutely 
prove that credit was intentionally given to him exclusively. 
But it would raise a presumption to that effect which could be 
rebutted only by showing that no other owner was known; or 
by some other evidence which disproved the intention of dis¬ 
charging the other part-owners. 

So, if the note, negotiable or otherwise, of one part-owner 
were taken in payment, if the promisor refused to pay, the 
others would be liable, unless they could show a distinct bargain 
by which they were exonerated. 

Commonly, the “ship’s husband,” as the agent of all the 
owners for the management of the ship has long been called, is 
one of the part-owners. He may be appointed in writing or 
otherwise. His duties are, in general, to provide for the com¬ 
plete equipment and repair of the ship, and take care of her 
while in port; to see that she is furnished with all regular and 
proper papers; to make proper contracts for freight or passage, 
and collect the receipts and make the disbursements proper on 
these accounts. For these things he has all the necessary 
powers. But he cannot, without special power, insure for the 
rest, nor buy a cargo for them, nor borrow money, nor give up 
their lien on the cargo for the freight, nor delegate his authority. 

Where he acts within his powers, a ship’s husband binds all 
his principals, that is, all the part-owners. But a third party 
may deal with him on his personal credit alone; and if the 
part-owners, believing this, and authorized to believe it by any 


THE CONTRACT OF BOTTOMRY. 


325 

acts or words of the third party, settle their accounts with the 
ship’s husband accordingly, this third party cannot now estab¬ 
lish a claim against them to their detriment. If a ship’s 
husband is not a part-owner, all the part-owners are liable to 
him, each for the whole amount. If he is a part-owner, each 
of the others is liable to him for his share of the expense 
incurred. The “ ship’s husband ” is called in the Statutes of 
the United States the “managing owner.” 

SECTION IV. 

THE LIABILITY OF MORTGAGEES. 

A mortgagee of a ship, who is in possession, is, in general, 
liable for supplies, repairs, etc., in the same way as an owner. 
But if he has not taken possession, he is not liable for supplies 
or repairs merely on the ground that his security is strength¬ 
ened by whatever preserves or increases the value of the 
vessel. Nor can he be made liable, except by some act or 
words of his own, which show that credit was properly given to 
him, or that he has come under a valid engagement to assume 
this responsibility. 

SECTION V. 

THE CONTRACT OF BOTTOMRY. 

By this contract, a ship is hypothecated (which means 
pledged) as security for money borrowed. The form of this 
contract varies in different places, and, indeed, in the same 
place. Its essentials are :—First, that the ship itself is bound 
for the payment of the money. Second, that the money is to 
be repaid only in case the ship performs a certain voyage, and 
arrives at its destined termination in safety; or, as it is some¬ 
times provided in modern bottomries, in case that the ship is 
in safety on a certain day; therefore, if the ship is lost before 
the termination of the voyage or the expiration of the period, 
no part of the money is due, or, as is sometimes said, the whole 
debt is paid by the loss. As the lender thus consents that the 
repayment of the money shall depend upon the safety of the 
ship, he has a legal right to charge “ marine interest,” which 
means as much more than legal interest as will serve to cover 
his risk. 


THE LA W OF SHIPPING. 


326 

The lender may require, and the borrower pay, this marine 
interest, which may be much more than lawful interest, on a 
bottomry bond, without usury. 

If the interest be not expressed in the contract, it will 
generally be presumed to be meant and included in the sum 
named as principal. 

If, by the contract, the lender takes more than legal interest 
and yet the money is to be paid to him whether the ship be lost 
or not, this is not a contract of bottomry, and it is subject to 
all the consequences of usury. But the lender may take 
security for his debt and marine interest, additional to the ship 
itself, provided the security is given, like the ship itself, to 
make the payment certain when it becomes due by the safety 
of the ship, but is wholly avoided if the ship be lost; for 
then the lender takes the risk of losing the whole, principal 
and interest, by the loss of the ship, and may therefore charge 
more than simple interest. 

The most common contracts of bottomry are those entered 
into by the master in a foreign port, where money is needed 
and cannot otherwise be obtained. Therefore the security 
goes with the ship, and the debt may be enforced, as soon as it 
is payable, against the ship, wherever the ship may be. But in 
this country, these contracts are frequently made by the owner 
himself, in the home port. And sometimes they are nothing 
else than contrivances to get more than legal interest. Thus, 
if A lends to B $ 20,000 on B’s ship for one year, at fifteen per 
cent, interest, conditioned that, if the ship be lost, the money 
shall not be paid, and the lender insures the ship for three per 
cent., he gets twelve per cent, interest, which may be much 
more than the legal interest, and yet incurs no risk. If such a 
contract were obviously and certainly merely colorable, and 
only a pretence for getting usurious interest, the courts would 
probably set it aside; but it might be difficult to show this. 

If the money is payable at the end of a certain voyage, and 
the owner or his servant, the master of the ship, terminate the 
voyage sooner,—either honestly, from a change in their plan, 
or dishonestly, by intentional loss or wreck,—the money 
becomes at once due. 


EMPLOYMENT OF A SHIP BY THE OWNER. 


327 


A bottomry bond made abroad would override all other liens 
or engagements, except the claim for seamen’s wages, and the 
lien of material men for repairs, and supplies indispensable to 
the safety of the vessel. The reason is, that a bottomry bond 
is supposed to be made from necessity, and to have provided 
the only means by which the ship could be brought home. For 
the same reason, a later bond is sustained as against an earlier, 
and the last against all before it. 

The lien of bottomry depends in no degree on possession, 
for the ship may go all over the world with the bottomry 
security attached to her; but the lender ought to collect the 
sum due, and so discharge the bond as soon as he conveniently 
can ; and therefore an unreasonable delay in enforcing it will 
destroy the lien; and any connivance by the lender at any 
fraud on the part of the master avoids the bond entirely. 

SECTION VI. 

THE EMPLOYMENT OF A SHIP BY THE OWNER. 

An owner of a ship may employ it in carrying his own 
goods, or those of another. He may carry the goods of others, 
while he himself retains the possession and direction of the 
ship ; or he may lease his ship to others, to carry their goods. 
In the first case, he carries the goods of others on freight; 
in the second, he lets his ship by charter-party. We shall con¬ 
sider first the carriage of goods on freight. 

He may load his ship as far as he can with his own goods, 
and then take the goods of others to fill the vacant space ; or 
he may put up his ship as “ a general ship,” to go from one 
stated port to another, and to carry the goods of all who offer. 

It may be remarked, that the word “ freight ” is used in 
different ways ; sometimes to designate the goods or cargo that 
is carried ; sometimes to denote the money which the shipper 
of the goods pays to the owner of the ship, for their transporta¬ 
tion. Not unfrequently, when the word is used in this latter 
sense, the word “money” is added, and the phrase “freight- 
money ” leaves no question as to what is meant. Sometimes 
a ship-owner who lets the whole burden of his ship to another 


THE LA W OF SHIPPING. 


328 

is said to carry the shipper’s goods on freight. But the most 
common meaning of the word, especially in law proceedings, is 
the money earned by a ship not chartered for the transportation 
of the goods; and in this sense we shall use it. 

Nearly the whole law of freight grows out of the ancient and 
universal principle that the ship and the cargo have reciprocal 
duties or obligations towards each other, and are reciprocally 
pledged to each other for the performance of these duties. In 
other words, not only is the owner of the ship bound to the 
owner of the cargo, as soon as he receives it, to lade it properly 
on board, take care of it while on board, carry it in safety (so 
far as the seaworthiness of the ship is concerned) to its destined 
port, and there deliver it, all in a proper way, but the ship itself 
is bound to the discharge of these duties. That is to say, if, by 
reason of a failure in any of these particulars, the shipper of 
the goods is damnified, he may look to the ship-owner for indem¬ 
nity ; but he is not obliged to do so, because he may proceed by 
proper process against the ship itself. This lien, like that of 
bottomry, is not dependent upon possession, but will be lost by 
delay, especially if the vessel passes into the hands of a pur¬ 
chaser for value without notice. On the other hand, if the ship 
discharges all its duties, the owner may look to the shipper 
for the payment of his freight; but is not obliged to do so, 
because he may keep his hold upon the goods, and refuse to 
deliver them until the freight is paid. 

The party who sends the goods may or may not be the owner 
of them. And he may send them either to one who is the 
owner; for whom the sender bought them, or to one who is only 
the agent of the owner. In either of these cases, the sender is 
called the consignor of the goods, and the party to whom they 
are sent is called the consignee. The sending them is called 
the consigning or the consignment of them ; but it is quite 
common to hear the goods themselves called the consignment. 

The rights and obligations of the ship-owner and the shipper 
are stated generally in an instrument of which the origin is lost 
in its antiquity, and which is now in universal use among com¬ 
mercial nations, with little substantial variety of form. It is 
called the Bill of Lading. It should contain the names of the 


EMPLOYMENT OF A SHIP BY THE OWNER. 


329 

consignor, of the consignee of the vessel, of the master, of the 
place of departure, and of the place of destination; also the 
price of the freight, with primage and other charges, if any 
there be, and either in the body of the bill or in the margin, 
the marks and numbers of the things shipped, with sufficient 
precision to designate and identify them. 

It should be signed by the master of the ship, who, by the 
strict maritime law, has no authority to sign a bill of lading 
until the goods are actually on board. There is some relaxation 
of this rule in practice; but it should be avoided. 

Usually one copy is retained by the master, and three copies 
are given to the shipper ; one of them he usually retains, another 
he sends to the consignee with the goods, and the other he 
sends to the consignee by some other conveyance. 

The delivery of the goods promised in the bill is to the con¬ 
signee, or his assigns; and the consignee may designate his 
assigns by writing on the back of the bill, “ Deliver the within- 
named goods to A B,” and signing this order; or the consignee 
may indorse the bill with his name only in blank, and any one 
who acquires an honest title to the goods and to the bill may 
write over the signature an order of delivery to himself. The 
consignee has this power, if such be the usage, even if the word 
“ assigns ” be omitted. Such indorsement not only gives the 
indorsee a right to demand the goods, but makes him the owner 
of the goods. 

As the bill of lading is evidence against the ship-owner as to 
the reception of the goods, and their quantity and quality, it is 
common to say “contents unknown,” or “said to contain, ” etc. 
But without any words of this kind, the bill of lading is not con¬ 
clusive upon the ship-owner in favor of the shipper, because he 
may show that its statements were erroneous through fraud or 
mistake. But the ship-owner, or master, is bound much more 
strongly by the words of the bill of lading, in favor of a third 
party, who has bought the goods for value and in good faith, on 
the credit of the bill of lading. In a case which occurred in 
New York, the court said, that, as between the shipper of the 
goods and the owner of the vessel, a bill of lading may be 
explained or corrected as far as it is a receipt; that is, as to the 


33o 


THE LA W OF SHIPPING . 


quantity of the goods shipped, and the like; but as between the 
owner of the vessel and an assignee of the bill, for a valuable 
consideration, paid on the strength of the bill of lading, it may 
not be explained or corrected; because the master, by signing 
the bill, authorizes the purchaser to believe the goods are what 
the bill says they are. 

The law-merchant gives to the ship, as we have seen, a lien 
on the goods for the freight. The master cannot demand the 
freight without a tender of the goods at the proper time, in the 
proper way, to the proper person, and in a proper condition ; 
but then the consignee is not entitled to the goods without pay¬ 
ing freight. The law gives this lien, whether it be expressed or 
not. But it may be expressly waived. The bill of lading, or 
other evidence, may show the agreement of the parties that the 
goods should be delivered first, and the freight not be payable 
until a certain time afterwards ; and such an agreement is in 
general a waiver of the lien. 

Nevertheless, if it seemed that the ship-owner did not intend 
to give up his security on the goods, a court of admiralty would 
so construe such an agreement as to give the consignee pos¬ 
session of the goods, for a temporary purpose, as to ascertain 
their condition, or, possibly, that he might offer them in the 
market, and by an agreement to sell raise the means of paying 
the freight; and yet would preserve for the master his security 
upon the goods for a reasonable time, unless, in the meantime, 
they should actually become, by sale, the property of a bond fide 
purchaser. 

The contract of affreightment is entire ; therefore no freight 
is earned unless the whole is earned, by carrying the goods 
quite to the port of destination. If by wreck, or other cause, 
the transportation is incomplete, no absolute right of freight 
goes out of it. We say no absolute right, because a condi¬ 
tional right of freight does exist. To understand this we must 
remember, that, as soon as the ship receives the goods, it, 
on the one hand, comes under the obligation of carrying them 
to their destination, and on the other, at the same time or on 
breaking ground and beginning the voyage, acquires the right 
of so carrying them. Therefore, if a wreck or other interruption 


EMPLOYMENT OF A SHIP BY THE OWNER. 


331 


intervenes, the ship-owner has the right of trans-shipping them, 
and sending them forward in the original ship or another ship, 
to the place of their original destination. When they arrive 
there, he may claim the whole freight originally agreed on ; but 
if forwarded in the original ship, he can claim no more; for 
then the extra cost of forwarding the goods is his loss. If the 
master or owner of the ship forwards them in another ship from 
necessity, and at an increased cost, the shipper must pay this 
increased cost. 

The ship-owner not only may, but must, send forward the 
goods, at his own cost, if this can be done by means reasonably 
within his reach. He is not, however, answerable for any delay 
thus occurring, or for any damage from this delay. The shipper 
himself, by his agent, may always reclaim all his goods, at any 
intermediate port or place, on tendering all his freight; because 
the master’s right of sending them forward is merely to earn 
his full freight. If, therefore, the goods are damaged and need 
care, and the master can send them forward at some time within 
reasonable limits, and insists upon his right to do so, the ship¬ 
per can obtain possession of his goods only by paying full freight. 
If, however, the master tenders the goods there to the shipper, 
and the shipper there receives them, this is held to sever or 
divide the contract by agreement, and now what is called a 
freight pro rata itineris , or for that part of the voyage which is 
performed, is due. This is quite a common transaction. 

Difficult questions sometimes arise as to what is a reception 
of the goods by their owner. The rights of the master and of 
the shipper are apparently opposed to each other, and neither 
must be pressed too far. The master must not pretend to hold 
the goods for forwarding, to the detriment of the goods or their 
value, when he cannot forward them, but merely uses this pre¬ 
tence to compel a payment of full freight. And the shipper 
must not refuse to receive the goods, when the master can do 
no more with them, and offers their delivery in good faith. 

If freight for a part of the voyage is payable, the question 
arises by what rule of proportion shall it be measured. One is 
purely geographical, and was formerly much used ; that is, the 
whole freight would pay for so many miles, and the freight for 


332 


THE LA W OF SHIPPING. 


a part must pay for so many less. Another is purely commer¬ 
cial. The whole freight being a certain sum for the whole dis¬ 
tance, what will it cost to bring the goods to the place where 
they are received, and how much to take them thence to their 
original destination. Let the original freight be divided into 
two parts proportional to these, and the first part is the freight 
for the part of the voyage through which they were carried, or, 
as it is called, the freight pro i'ata , and is to be paid by the ship¬ 
per who receives the goods. Neither of these, nor indeed any 
other fixed and precise rule, is generally adopted in this country. 
But both courts and merchants seek, by combining the two, to 
ascertain what proportion of the increase of value expected from 
the intended transportation has been actually conferred upon the 
goods by actual partial transportation, and this is to be taken as 
the freight that is due pro rata itineris. 

If the bill of lading requires delivery to the consignee or 
his assigns/' he or they paying freight,”—which is usual,—and 
the master delivers the goods without receiving freight, which 
the consignee fails to pay, the master or owner cannot in the 
absence of express contract fall back on the consignor and make 
him liable, unless he can show that the consignor actually owned 
the goods, or by his words or acts made himself responsible 
therefor, in which case the bill of lading, in this respect, is 
nothing more than an order by a principal upon an agent to pay 
money due from the principal. 

Under the usual bill of lading the goods are to be delivered 
to the consignee or his assigns on the payment of freight. If 
goods are accepted under this bill of lading, the party receiving 
them, whether the consignee or his assignee, becomes liable for 
the freight. If the master delivers goods to any one, saying that 
he shall look to him for the freight, he may demand the freight 
of him unless that person had the absolute right to the goods 
without payment of freight; which must be very seldom the 
case. If the consignee is not liable for the freight, his indorse¬ 
ment of the bill of lading does not make him so. And if the 
consignee is liable, and the goods are received by any one only 
as agent of the consignor, this agent does not thereby become 
liable. 


EMPLOYMENT OF A SHIP BY THE OWNER. 


333 


If freight be paid in advance, and not subsequently earned, 
it must be repaid, unless it can be shown that the owner took 
a less sum for ready cash than he would otherwise have had, 
and for this or some other equivalent reason the money paid 
was as a final settlement, and was to be retained by the owner 
at all events. 

If a consignee pay more than he should, he may recover it 
back, if paid through ignorance or mistake of fact; but not if, 
with full knowledge of all the facts, he was ignorant or mistaken 
as to the law. 

If one sells his ship after a voyage is commenced, he 
alone can claim the freight of the shipper of goods, although 
by the contract of sale the seller is to pay it over to the pur¬ 
chaser. A mortgagee of a ship who has not taken posses¬ 
sion, has not, in general, any right to the freight, unless this 
is specially agreed. Neither has a lender on a bottomry 
bond. 

No freight, of course, can be earned by an illegal voyage, as 
the law will not enforce any illegal contract, or sanction any 
illegal conduct. 

The goods are to be delivered, by the bill of lading, in good 
condition, “ excepting the dangers of the seas,” and such other 
risks or perils as may be expressed. If the goods are dam¬ 
aged to any extent by any of these perils, and yet can be and 
are delivered in specie (that is, if the goods are actually deliv¬ 
ered although hurt or spoilt, as corn or hides although rotten, 
flour although wet, fish although spoilt), the freight is payable. 

The shipper or consignee cannot abandon the goods for 
the freight, if they remain in specie , although they may be 
worthless; for damage caused by an excepted risk is his loss, 
and not the loss of the owner. If they are lost by a risk 
which the ship-owner does not except in the bill of lading, he is 
answerable for that loss, and it may be charged in settlement 
of freight. 

If they are lost in substance, though not in form, that is, 
although the cases or vessels are preserved, as if sugar is 
washed out of boxes or hogsheads, or wine leaks out of casks, 
by reason of injury sustained from a peril of the sea, though 


334 


THE LA IV OF SHIPPING. 


the master may deliver the hogsheads or boxes or casks, this 
is not a delivery of the sugar or of the wine, and no freight 
is due. 

If the goods are injured, or actually perish and disappear 
from internal defect or decay or change, that is, from causes inher¬ 
ent in the goods themselves, with no fault of the master, freight 
is due. But if it can be shown that the loss or injury might 
have been avoided by the use of proper precautionary measures, 
and that the usual and customary methods for this purpose have 
been neglected, the master or ship-owners may be held liable for 
the damage. 

If they are lost from the fault of the ship-owner, the master, 
or crew, the ship-owner must make the loss good; but in this 
case may have, by way of offset or deduction, his freight, 
because the shipper is entitled to full indemnification, but not 
to make a profit out of this loss. If goods are delivered 
although damaged and deteriorated from faults for which the 
owner is responsible, as bad stowage, deviation, negligent navi¬ 
gation, or the like, freight is due; the amount of the damage 
being first deducted. 

The rules in respect to passage-money are quite analogous 
to those which regulate the payment of freight. Usually, how¬ 
ever, the passage-money is paid in advance. But it is not earned 
except by carrying the passenger, or pro rata , by carrying him 
only a part of the way with his consent. And if paid in advance, 
and not earned by the fault of the ship or owner, it can be recov¬ 
ered back. 

SECTION VII. 

CHARTER-PARTIES. 

The owner may let his ship to others, and the written 
instrument by which this is done is called by an ancient name, 
a Charter-Party. The form of this instrument varies consider¬ 
ably, because it must express the bargain between the parties, 
and this of course varies with circumstances and the pleasure 
of the parties. An agreement to make and receive a charter, 
though not itself equivalent to a charter, will, if the pur¬ 
poses of the proposed charter are carried into effect, be 


CHARTER-PARTIES. 


335 

considered as evidence that such a charter was made and com¬ 
pleted. 

Generally, only the burden of the ship is let, the owner 
holding possession of her, finding and paying her master and 
crew and supplies and repairs, and navigating her as is agreed 
upon. Sometimes, however, the owner lets his ship as he might 
let a house, and the hirer takes possession, mans, navigates, 
supplies, and even repairs her. 

In the latter case, bills of lading are not commonly given by 
the ship-owner to the hirer; but if the hirer takes the goods of 
other shippers, bills of lading are given by him to them ; but in 
the former, which we have said is much more common, bills of 
lading are usually given by the ship-owner to the charterer (or 
hirer), as they are in the case of a general ship. They are 
then, however, little more than evidence of the delivery and 
receipt of the goods, for the charter-party is the controlling 
contract as to all the terms or provisions which it expresses. 
The master is not authorized to sign bills promising to carry 
and deliver the goods for less freight than has been stipulated 
for. And if he signs such bills, and goods are shipped by the 
charterer, neither the charterer nor any person shipping the 
goods with a knowledge of the charter-party, could defend on 
account of the bills of lading, against the owner’s claims under 
the charter-party. 

There is no particular form required for a charter-party. It 
should, however, designate particularly the ship, the voyage, the 
master, and the parties ; should describe the ship generally, and 
particularly as to her tonnage or capacity; should designate 
especially what parts of the ship are let, and what parts, if any, 
are reserved to the owner, or to the master, to carry goods, or 
for the purpose of navigation; should describe the voyage, or 
the period of time for which the ship is hired, with proper par¬ 
ticularity; should set forth the lay-days, the demurrage, the 
obligation upon either party, to man, navigate, supply, and repair 
the ship, and all other particulars of the bargain, for this is a 
written instrument of an important character, and cannot be 
varied by any external evidence. Finally, it should state, dis¬ 
tinctly and precisely, how much is to be paid for the ship,— 


THE LA W OF SHIPPING. 


336 

whether by ton, and if so, whether by ton of measurement or 
ton of capacity of carriage, or in one gross sum for the whole 
burden,—and when the money is payable, and how ; that is, in 
what currency or at what exchange, especially if it be payable 
abroad. The charter-party usually binds the ship and freight 
to the performance of the duties of the owner, and the cargo 
to the duties of the shipper. But the law-merchant would 
create this mutuality of obligation if it were not expressed. 

If the hirer takes the whole vessel, he may put the goods of 
other shippers on board (unless prevented by express stipula¬ 
tion) ; but whether he fills the whole ship or not, he pays for the 
whole; and what he pays for so much of the ship as is empty is 
said to be paid for dead freight; and if the master brought back 
the cargo because it could not be disposed of, the owner of the 
cargo would pay freight for bringing it back, although the char¬ 
ter-party said nothing about a return cargo. The freight is 
calculated on the actual capacity of the ship, unless she is agreed 
to be of a specified tonnage. If either party is deceived or 
defrauded by any statement in the charter-party, he has, of 
course, his remedy against the other party. 

If a charterer takes the goods of other shippers, payment 
by one of them to the master or ship-owner is a good defence 
against the claim of the charterer against him, for so much as 
the charterer was bound to pay the owner, but no more. 

The voyage may be a double one; a voyage out, and then a 
voyage home ; or a voyage to one port, and thence to another. 
The question sometimes arises, whether any freight is payable 
if the ship arrives in safety out, and delivers her cargo there, 
and is lost on her return with the cargo that represents the 
cargo out. Of course, the parties may make what bargain they 
please, and the law respects it; but in the absence of an agree¬ 
ment on this point, the courts would generally consider each 
voyage, at the termination of which goods are delivered, as a 
voyage by itself, earning its own freight. 

As time has become of the utmost importance in com¬ 
mercial transactions, both parties to this contract should be 
punctual, and cause no unnecessary delay; and for such delay 
the party injured would have his remedy against the party in 


CHA R TER-PA R TIES. 


337 

fault. The charter-party usually provides for so many “ lay¬ 
days,” and for so much “demurrage.” Lay-days, or working- 
days, are so many days which the charterer is allowed, without 
paying for them, or paying only a small price, for loading or 
for unloading the vessel. These lay-days are counted from the 
arrival of the ship at her dock, wharf, or other place of discharge, 
and not from her arrival at her port of destination, unless other¬ 
wise agreed on by the parties; and the usage of the port is 
often adverted to, to determine the place and manner of loading. 
In the absence of any custom or bargain to the contrary, Sun¬ 
days are computed in the calculation of lay-days at the port of 
discharge; but if the contract specifies “working lay-days,” 
Sundays and holidays are excluded. If more time than the 
agreed lay-days is occupied, it must be paid for; and “demur¬ 
rage ” means what is thus paid. Usually, the charterer agrees 
to pay so much demurrage a day. If he agrees only to pay 
demurrage, without specifying the sum, or if so many working 
days are agreed on, and nothing more is said, it would, generally, 
be considered that the number of lay-days determined what was 
a reasonable and proper delay, and that for whatsoever was 
more than this the party in fault must pay a reasonable in¬ 
demnity. 

If time be occupied in the repairs of the ship, which become 
necessary without the fault of the ship-owner or master, or of 
the ship itself, that is, if they do not arise from her original 
unseaworthiness, the charterer pays during this time. The 
charterer or hirer must not abandon the vessel while he can 
keep her afloat, and suitably provided for the employment and 
destination for which she was hired; and the ship-owner must 
be ready to pay all expenses and damages necessarily incurred 
for the purpose. But the charterer will not be bound by the 
charter-party to wait for the repair, unless the vessel can be 
repaired within a reasonable time. 

Many cases have arisen where the ship was delayed by differ¬ 
ent causes, and the question occurred, which party should pay 
for the time thus lost. I should say that no delay arising from 
the elements, as from ice, or tide, or tempest, or from any act 
of government, or from any real disability of the consignee 
22 


338 THE LA W OF SHIPPING . 

which could not be imputed to his own act, or to his own 
wrongful neglect, would give rise to a claim on the charterer 
for demurrage. 

Demurrage seems essentially due only for the fault or volun¬ 
tary act of the charterer; but if he hires at so much on time, 
that is, by the day, week, or month, then, if the vessel be 
delayed by seizure, embargo, or capture, and the impediment is 
removed, and the ship completes her voyage, the charterer pays 
for the whole time. If she be condemned, or otherwise lost, 
this terminates the voyage and the contract. 

The contract may be dissolved by the parties, by mutual 
consent, or against their consent by any circumstance which 
makes the fulfillment of the contract illegal; as, for example, by 
a declaration of war, on the part of the country to which the 
ship belongs, against that to which she was to go. So, either 
an embargo, or an act of non-intercourse, or a blockade of the 
port to which the ship was going, may either annul or suspend 
the contract of charter-party. And we should say they would 
be held to suspend only, if they were temporary in their terms, 
and did not require a delay which would be destructive of the 
purposes of the voyage. 

In reference to all these points, it is to be understood, that 
if the parties know or expect the circumstance when they make 
their bargain, and provide for it, any bargain they choose to 
make in relation to it would be enforced, unless it required one 
or other of the parties to do something prohibited by the law of 
nations, or the law of the country in which the parties resided, 
and to whose tribunals they must resort. 

SECTION VIII. 

GENERAL AVERAGE. 

Whichever of the three great mercantile interests—ship, 
freight, or cargo—is voluntarily lost or damaged for the benefit 
of the others, if the others receive benefit therefrom, they must 
contribute ratably to the loss. That is to say, such a loss is 
averaged upon all the interests and property which derive 
advantage from it. The phrase “general average” is used, 


I 


GENERAL AVERAGE. 


339 


because a loss of a part is thus divided among all the other 
parts, and is sustained by all in equal proportion. This rule is 
ancient and universal. It would be held to apply to all our 
inland navigation, whether of river or lake, steam or canvas. 

There are three essentials in general average without the 
concurrence of all of which there can be no claim for a loss. 
First, the sacrifice must be voluntary; second, it must be neces¬ 
sary ; third, it must be successful. Or, in other words, there 
must be a common danger, a voluntary loss, and a saving of the 
imperilled property by that loss. 

The loss must not only be voluntary, but, what is indeed 
implied in its being voluntary, it must be for the purpose and 
with the intention of saving something else. And this inten¬ 
tion must be carried into effect; for only the interest or property 
which is actually saved can be called on to contribute for that 
which was lost. 

The reason of what has been said must be distinctly under¬ 
stood, because the whole law of general average rests upon it. 
It is simply this: if any man’s property be destroyed for the 
benefit of his neighbors, they who are helped by his loss ought 
to make up his loss. The law supposes that all who are 
interested in the ship or the cargo, or any part of either, agree 
together beforehand, that, if a sacrifice of a part can save the 
rest, that sacrifice shall be made, without stopping to ask who 
it is that suffers in the first place; and that afterwards, if the 
sacrifice be beneficial to any for whom it was made, such persons 
shall bear their share of it, by contributions to him whose 
property was purposely destroyed for their good. And their 
contributions shall be in proportion to the value of the property 
saved for them by the sacrifice. 

Any loss which comes within this reason is an average loss; 
as ransom paid to a captor or pirate; not so, however, if he 
take what he will, and leave the ship and the rest; for this there 
is no contribution. So, cutting away bulwarks or the deck, to 
get at goods for jettison, is an average loss. As is also the 
cutting away of the masts and rigging, or throwing overboard a 
boat to relieve the ship, or the loss of a cable and anchor, or 
either, by cutting the cable to avoid an impending peril. So is 


THE LA W OF SHIPPING. 


340 

a damage which, though not intended, is the direct effect and 
consequence of an act which was intended; as, where a mast is 
purposely cut away, and by reason of it water gets into the 
hold, and damages a cargo of corn, this damage is as much a 
general average as the loss of the mast. 

But if a ship makes all sail in a violent gale to escape a lee 
shore, and so saves ship and cargo, but carries away her spars, 
etc.; or if an armed ship fights a pirate or enemy, or beats him 
off at great loss; the first is a common sea risk, the second a 
common war risk, and neither of them is a ground for average 
contribution. 

It is not considered prudent to lade goods on deck, because 
they are not only more liable to loss there, but hamper the 
vessel, and perhaps make her top-heavy, and increase the com¬ 
mon danger for the whole ship and cargo. Therefore, by the 
general rule, if goods on deck are jettisoned (which old mercan¬ 
tile word means cast overboard), they are not to be contributed 
for. But there are some voyages on which there is a known 
and established usage to carry goods of a certain kind on deck. 
This justifies the carrying them there, and then the jettison of 
them would entitle the owner to contribution. 

The repairs of a ship are for the benefit of the ship itself. 
But if a ship be in a damaged condition, at a port where she 
cannot be permanently repaired, and receive there a temporary 
repair, which enables her to proceed to another port where she 
may have a thorough repair, and thereby the voyage is saved, 
the cost of all of the first repair which was of no further use 
than to make the permanent repair possible, is to be contributed 
for by ship, freight, and cargo, because all these were saved 
by it. 

If a ship put into a port for necessary repair, and receive it, 
and the voyage is by reason thereof successfully prosecuted, the 
wages and provisions of the crew, from the time of putting away 
for the port, the expense of loading and unloading, and every 
other necessary expense arising from this need of repair, are an 
average. 

As to the expenses, wages, etc., during a capture, or a deten¬ 
tion by embargo, the claim for contribution is limited to those 


GENERAL AVERAGE. 


341 

expenses which are necessarily and successfully incurred in 
saving or liberating the property. 

The loss or sacrifice must be necessary or justified by a 
reasonable probability of its necessity and utility. In former 
times the law guarded with much care against wanton and 
unnecessary loss by requiring that the master should formally 
consult his officers and crew, and obtain their consent before 
making a jettison. But this rule has passed away, and the 
practice is almost unknown; and it has been held that where a 
consultation is had this merely proves that the jettison was delib¬ 
erately made, but does not prove the necessity of it. 

An “Adjustment of Average” means an account stated, 
which exhibits accurately all the losses to be contributed for, 
and all the property or interests bound to contribute, and all 
the persons entitled to receive contribution, and the amounts 
they should each receive, and all persons bound to pay contribu¬ 
tion, and the amounts they should each pay. 

It is the master’s duty to have an average adjustment made 
at the first port of delivery at which he arrives. And an adjust¬ 
ment made there, especially if this be a foreign port, is generally 
held to be conclusive upon all parties. For the purpose of this 
rule, our States are foreign to each other; as they are indeed 
for most purposes under the Law of Admiralty, or the Law of 
Shipping. And we should state the rule to be that an adjust¬ 
ment, when properly made, according to the law of the port 
where it is made, is binding everywhere. But a foreign adjust¬ 
ment might doubtless be set aside or corrected, for fraud or 
gross error. 

* The master has the right of refusing delivery of the goods, 
until the contribution due from them on general average is paid 
to him. That is, he cannot hold the whole cargo, if it belong 
to different consignees, until the whole average is paid; but he 
may hold all that belongs to each consignee, until all that is due 
from that consignee is paid. And the master may retain public 
property belonging to the United States until the average con¬ 
tribution due upon it has been paid. 

As the purpose of average and contribution is to divide 
the loss proportionably over all the property saved by it, the 


342 


THE LA W OF SHIPPING. 


whole amount which any one loses is not made up to him, but 
only so much as will make his loss the same percentage as every 
other party suffers. Thus, if there be four shippers, and each 
has on board $5,000, and the ship is worth $15,000, and the 
freight $5,000, and all the goods of one shipper are thrown over, 
and everything else saved; now the whole contributing interest 
is $40,000, and the loss, which is $5,000, is one-eighth of this 
contributory interest. The shipper whose goods are jettisoned 
therefore loses one-eighth of his goods, and the remaining seven- 
eighths are made up to him, by each owner of property saved 
giving up one-eighth. 

There are usually in every commercial place persons whose 
business it is to make up Adjustments. As the losses usually 
consist of many items, some of which are general average, and 
some rest on the different interests on which they fell, and as 
the contributory interests must all be enumerated, and the value 
of each ascertained according to the general principles of law, 
and then the average struck on all these items, it is obvious that 
this must be a calculation requiring great care and skill; and as 
the adjustment affects materially persons who may not be pres¬ 
ent, nor specially represented,—for all these reasons only those 
who are known to be competent to the work should be employed 
to make this adjustment. With us this work is generally done 
by insurance brokers. 

SECTION IX. 

SALVAGE. 

In the Law of Shipping and the usage of merchants, the 
word “ salvage ” has two quite different meanings. If a ship or 
cargo meets with disaster, and the larger part is destroyed or 
lost, and a part be saved, that which is saved is called the 
“ salvage.” Thus, if a ship be wrecked, and sold where she lies 
because she cannot be got off, her materials, wood and metal, 
her spars, sails, cordage, boats, and everything else about her 
which has any value, constitute the “salvage.” And all of this, 
or the proceeds of it if it be sold by the master, belong to the 
owner or to the insurer, accordingly as circumstances may indi¬ 
cate ; and this question will be considered in the chapter on the 
Law of Insurance. 


SALVAGE. 


343 


Besides this, which is the primary meaning of the word, 
salvage has quite another signification. By an ancient and uni¬ 
versal law, maritime property which has sustained maritime 
disaster, and is in danger of perishing, may be saved by any 
person who can save it, whether they are or are not requested 
to do so by the owner or his agent. And the persons so saving 
it acquire a right to compensation, and a lien or claim on the 
property saved for compensation. The persons saving the 
property are called “salvorsthe amount paid to them is paid 
for saving the property, or, as it was called, for the “ salvage,” 
meaning at first by this word the act of saving it; but the habit 
of paying so much for “salvage” led to understanding by “sal¬ 
vage ” the money paid. Then it was said, the money was paid 
as salvage. This is now the more common use of the word. 
Thus a party bringing a saved vessel in demands “ salvage,” 
and estimates the salvage as so much; and the owners are said 
to lose so much by salvage, or so much money is charged to 
salvage, and insurers are said to be liable for salvage, meaning 
in all these and similar cases the amount paid for saving, or for 
the act of salvage. 

This law is not only applicable to all maritime property, but 
is confined to that; and is nearly unknown in reference to prop¬ 
erty saved from destruction on land. 

Because this principle is wholly and exclusively maritime, no 
court but that of Admiralty acknowledges and enforces it. The 
way in which it is enforced is this. Salvors have a lien on the 
property saved for their compensation; that is, they have pos¬ 
session of it, and have a right to keep possession of it until their 
claim be satisfied. For this purpose they bring the ship or goods 
into the nearest port, and then make their claim of the owner or 
his agent, if they can find him, and he is within reach. If he 
cannot be found, or if he refuses what they think proper to 
demand, they employ counsel who are acquainted with the prac¬ 
tice in Admiralty courts, who present to the court in the district 
where the property is a libel , as it is called in Admiralty law, 
setting forth the facts, and the demand for salvage. Thereupon 
the court takes possession of the property, and orders notice to 
the owners, if possible. The owners thereupon appear, and 


344 


THE LA W OF SHIPPING. 


either resist all the demand for salvage, on the ground that no 
services were performed which entitled the party to salvage, or, 
admitting the service, they go to trial to determine whether any 
salvage, and, if so, how much, shall be paid. On this question, 
evidence and argument are heard, and the court then issues such 
decree as the case seems to require. 

Although services were rendered to the ship or cargo, or 
both, it does not follow that they were salvage services in the 
legal sense of the word. For certainly every person who helps 
another at sea does not thereby acquire a right to take posses¬ 
sion of the property in reference to which his assistance was 
given, and carry it into port. To give this right, the property, 
whether ship or cargo, must have been in the proper and 
rational sense of the term saved; that is, there must have been 
actual disaster and impending danger of destruction; and from 
this danger the property must have been rescued by the exer¬ 
tions of the salvors, either alone, or working together with the 
original crew. 

It is to be noticed, however, that neither the master nor 
officers nor sailors of the ship that is saved can be salvors, or 
entitled to salvage. The policy of the law-merchant forbids 
the holding out such a reward for merely doing their duty. It 
considers that sailors might be induced to let the vessel get 
into danger, if they could expect a special reward for getting 
her out of it. They are already bound by law to do all they 
possibly can do to save the ship and cargo under all circum¬ 
stances. But courts of admiralty have sometimes allowed 
gratuities to seamen for extraordinary exertions and very 
meritorious conduct. A passenger may be a salvor of the ship 
he sails in, because he has no especial duty in regard to it. 

If the Court of Admiralty find it to be a case for salvage, 
there are no positive and certain rules which determine how 
much shall be given, or in what proportions, to the different 
salvors. In every case the court are governed by the circum¬ 
stances of that case ; and even if a ship or cargo be entirely 
abandoned at sea, or, in maritime phrase, derelict , those who 
find it and take possession of it, and bring it in, take according 
to their merits, and not one-half, as used to be the rule. More 


SALVAGE. 


345 

than one-half is very seldom given; but this has been done in 
a few extraordinary cases. 

If the property is not entirely de'relict or deserted, and all 
hope of recovering it by the original crew given up, then less 
than half is usually given by way of salvage. How much less 
depends on the circumstances. It may be very little, or nearly 
half. The court will inquire how much time was lost by the 
salvors, how much labor the saving of the property required, 
and, most of all, how much exposure the salvors underwent, or 
how much danger they incurred. For it is an established rule, 
that in addition to a fair compensation for time, labor, and loss 
of insurance (for which see the chapter on Insurance), the 
court will give a further sum by way of reward, and for the 
purpose of encouraging others to make similar exertions and 
incur similar perils to save valuable property. And, in this 
point of view, all necessary exposure and danger are considered 
as entitled to liberal reward. 

If the court have not restored the property to its owners 
on their giving bonds with sureties to pay the salvage and costs, 
they order the property sold; and they may do either of these 
things at any period of the proceedings. At the close, they 
decree the whole amount of salvage, and also direct particularly 
its distribution. 

A large part, usually about one-fourth, of the whole salvage, 
is allowed to the owners of the saving ship or ships; another 
large part to her master, less parts to the officers, in proportion 
to their rank, and the residue is divided among the crew, with 
such discrimination between one and another as greater or less 
exertions or merit require. 

The trial is had, and the whole decree and this distribution 
of the salvage made, by the court alone, without a jury. But 
the statute of the United States, which gives our courts of 
Admiralty (which are exclusively United States courts, no 
State court having any Admiralty power) jurisdiction in Admi¬ 
ralty over our inland lakes and rivers, provides that disputed 
facts shall be tried by a jury, in most cases, at the request of 
either party. 


34 ^ 


THE LA W OF SHIPPING . 


SECTION X. 

THE NAVIGATION OF THE SHIP. 

i. Of the Powers and Duties of the Master. —The mas* 
ter has the whole care and the supreme command of his vessel, 
and his duties are co-equal with his authority. He must see to 
everything that respects her condition; including her repair, 
supply, loading, navigation, and unloading. He is principally 
the agent of the owner; but is, to a certain extent, the agent 
of the shipper, and of the insurer, and of all who are interested 
in the property under his charge. 

Much of his authority as agent of the owner springs from 
necessity. He may even sell the ship in a case of extreme 
necessity ; so he may make a bottomry bond which shall pledge 
her for a debt; so he may charter her for a voyage or a term 
of time; so he may raise money for repairs, or incur a debt 
therefor, and make his owners liable. All these, however, he 
can do only from necessity. If the owner be present, in 
person or by his agent, or is within easy access, or can be con¬ 
sulted, by telegraph or otherwise, without a loss of time which 
would be seriously injurious, the master has no power to do 
any of these things unless specially authorized. 

If he does them in the home port, the owner is liable only 
where, by some act or words, he ratifies or adopts the act of his 
master. If in a foreign port, even if the owner were there, he 
may be liable, on his master’s contracts of this kind, to those 
who neither knew nor had the means of knowing that the 
master’s power was superseded or qualified by the presence of 
the owner. The master being by the law-merchant the general 
agent of the owner of the ship, no one dealing with him can be 
prejudiced by any private or secret limitations to his authority 
by the owner. 

Beyond the ordinary extent of his power, which is limited 
to the care and navigation of the ship, he can go, as we have 
said, only from necessity. But this necessity must be greater 
to justify some acts than for others. Thus, he can sell the ship 
only in a case of extreme and urgent necessity ; that is, only 
when it seems in all reason impossible to save her, and a sale 


THE NA VIG A TION OF THE SHIP. 


34 7 


is the only way of preserving for the owners or insurers any 
part of her value. We say “ seems; *” for if such is the 
appearance at the time, when all existing circumstances are 
carefully considered and weighed, the sale is not void, if some 
accident, or cause which could not be anticipated, as a sudden 
change in the wind or sea, enables the purchaser to save her 
easily. Several such cases have occurred. 

So, to justify him in pledging her by bottomry, there must 
be a stringent and sufficient necessity; but it may be far less 
than is required to authorize a sale. It is enough if the money 
is really needed for the safety of the ship, and cannot otherwise 
be raised, or not without great waste. 

So, to charter the ship, there must be a sufficient necessity, 
unless the master has express power to do this. But the 
necessity for this act may be only a mercantile necessity ; or, 
in other words, a certain and considerable mercantile expediency. 

So, to bind the owners to expense for repairs or supplies, 
there must also be a necessity for them. But here it is suffi¬ 
cient if the repairs or supplies are such as the condition of the 
vessel, and the safe and comfortable prosecution of the voyage, 
render proper. 

So the master—unlike other agents, who have generally no 
power of delegation—may substitute another for himself, to 
discharge all his duties, and possess all his authority, if he is 
unable to discharge his own duties, because, in that case, the 
safety of the ship and property calls for this substitution. 

Generally, the master has nothing to do with the cargo 
between the lading and the delivery. But, if the necessity 
arises, he may sell the cargo, or a part of it, at an intermediate 
port, if he cannot carry it on or transmit it, and it must perish 
before he can receive specific orders. So, he may sell it, or a 
part, or pledge (or hypothecate) it, by means of a respondentia 
bond, in order to raise money for the common benefit. A bond 
of respondentia is much the same thing as to the cargo that a 
bottomry bond is as to the ship. Money is borrowed by it, at 
maritime interest, on maritime risk, the debt to be discharged 
by a loss of the goods. But it can be made by the master only 
on even a stronger necessity than that required for bottomry; 


348 


THE LA IV OF SHIPPING. 


only when he can raise no money by bills on the owner, nor by 
a bottomry of the ship, nor by any other use of the property 
or credit of the owner. Indeed, it seems that, when goods are 
sold by the master to repair the vessel, it is to be considered as 
in the nature of a forced loan, for which the owner of the 
vessel is liable to the shipper, whether the vessel arrive or not. 

The general remark may be made, that a master has no 
ordinary power, and can hardly derive any extraordinary power 
even from any necessity, except for those things which are 
fairly within the scope of his business as master, and during 
his employment as master. Beyond this he has no agency or 
authority that is not expressly given him. 

The owner is liable also for the wrong-doings of the master; 
but with the limitation which belongs generally to the liability 
of a’principal for the torts of his agent, or of a master for the 
torts of his servant. That is, he is liable for any injury done 
by the master while acting as the master of his ship , but not for 
the wrongful acts which he may do personally when he is not 
acting in his capacity of master, although he holds the office at 
the time. Thus if, through want of skill or care while navi¬ 
gating the ship, he runs another down, the owner is liable for 
the collision. But the owner is not liable if the master 
embezzles goods which he takes on board to fill his own privi¬ 
lege, to have himself all the freight and profit. 

2. Of Collision.— The general rules in this country in 
respect to collision are that the party in fault suffers his own 
loss and compensates the other party for the loss he may sustain. 
If neither is in fault, the loss rests where it falls. If both parties 
are in fault, the loss rests, where it falls, by the rules of 
the common law, but is equally divided in Admiralty. There 
are certain rules in regard to sailing, founded on the princi¬ 
ple that the ship which can change its course to avoid collision 
with least inconvenience must do so; and therefore that the 
ship that has a fair or leading wind shall give way to one on a 
wind, or go under her stern ; and if vessels are approaching 
each other, both having the wind on the beam, or so far free 
that either may change its course in either direction, the vessel 
on the larboard tack must give way, and each pass to the right. 


THE NA VIGATION OF THE SHIP. 


349 

The same rule governs vessels sailing on the wind, and approach¬ 
ing each other, when it is doubtful which is to the windward. 
But if the vessel on the larboard tack is so far to windward, that, 
if both persist on their course, the other will strike her on the 
lee side, abaft the beam, or near the stern, in that case the vessel 
on the starboard tack should give way, as she can do so with 
greater facility, and less loss of time and distance, than the 
other. Again, when vessels are crossing each other in opposite 
directions, and there is the least doubt of their going clear, the 
vessel on the starboard tack should persevere on her course, 
while that on the larboard tack should bear up, or keep away 
before the wind. 

It is also held that steam-vessels are regarded in the light of 
vessels navigating with a fair wind, and are always under obliga¬ 
tions to do whatever a sailing-vessel going free or with a fair 
wind would be required to do under similar circumstances. Their 
obligation extends still further, because they possess a power to 
avoid the collision not belonging to sailing-vessels, even if they 
have a free wind, the master having the steamer under his com¬ 
mand, both by changing the helm and by stopping or reversing 
the engines. 

As a general rule, therefore, when meeting a sailing-vessel, 
whether close-hauled or with the wind free, the latter has a right 
to keep her course, and it is the duty of the steamer to adopt 
such precautions as will avoid her. 

Rev. Stat., § 4233 in addition to the sailing and steering 
rules above mentioned provides rules for the display of lights 
and the use of fog signals by different classes of vessels on 
different occasions. Briefly stated these rules provide that in 
the night all vessels in motion shall carry a green light on the 
storboard side and a red light on the port side. Ocean steam¬ 
ships and steamers carrying sail carry in addition a white light 
on the foremast head ; coasting steamers a central range of two 
white lights; and steamers towing other vessels two white 
mast-head lights arranged vertically. All vessels at anchor in 
a roadstead must must show a white light. 

In foggy weather a steamer under way must sound a steam- 
whistle at intervals of not more than one minute. Sailing- 


350 


THE LA W OF SHIPPING. 


vessels under way must sound a fog horn at intervals of not 
more than five minutes. 

Both steamers and sailing-vessels at anchor must sound a 
bell at intervals of not more than five minutes. 

For any misdeed of the master, for which the owner is liable, 
this liability is limited in our own country, as well as in many 
others, to the value of the ship and freight. 

SECTION XI. 

THE SEAMEN. 

The law makes no important distinction between the officers, 
or mates, as they are usually called, and the common sailors. 
Our statutes contain many provisions in behalf of the seamen, 
and in regulation of their rights and duties, although the con¬ 
tract between them and the ship-owner is in general one of 
hiring and service. They relate principally to the following 
points: ist, the shipping articles; 2d, wages; 3d, provisions 
and subsistence; 4th, the seaworthiness of the ship; 5th, the 
care of seamen in sickness; 6th, the bringing them home from 
abroad; 7th, regulation of punishment. 

First. Every master of a vessel bound from a port in the 
United States to any foreign port, or of any ship or vessel of 
the burden of fifty tons or upwards, bound from a port in one 
State to a port in any other State, is required to have shipping 
articles, which articles every seaman on board must sign, under 
a penalty of twenty dollars for every person who does not sign, 
and they must describe accurately the voyage, and the terms on 
which each seaman ships. Courts will protect seamen against 
uncertain or catching language, and against unusual and op¬ 
pressive stipulations. And the shipping articles ought to declare 
explicitly the ports of the beginning and of the termination of 
the voyage. If a number of ports are mentioned, they are to 
be visited only in their geographical and commercial order, and 
not revisited unless the articles give the master a discretion. 
Admiralty courts enforce the stipulations if they are fair and 
legal, or disregard them if they are otherwise, and exercise a 
liberal equity on this subject; but courts of common law are 
more strictly bound by the letter of the contract. The articles 


SEAMEN. 


351 

are generally conclusive as to wages; but accidental errors or 
omissions may be supplied or corrected by either party, by 
parol. 

Second. Wages are regulated as above stated, and also by 
limiting the right to demand payment in a foreign port to one- 
third the amount then due, unless it be otherwise stipulated. 
Seamen have a lien on the ship and on the freight for their 
wages, which is enforceable in Admiralty. By the ancient rule, 
that freight is the mother of wages, any accident or misfortune 
which makes it impossible for the ship to earn its freight destroys 
the claim of the sailors for wages. The reason is, to hold out 
to the seamen the strongest possible inducement to enable the 
ship to carry the goods and earn the freight. 

Third. Provisions of due quality and quantity must be fur¬ 
nished by the owner, and double wages are given to the seamen 
when on short allowance, unless the necessity be caused by 
some peril of the sea, or other accident of the voyage. The 
master may at any time put them on a fair and proper allowance 
to prevent waste. 

Fourth. The owner is bound to provide a seaworthy vessel, 
and our statutes provide the means of lawfully ascertaining her 
condition at home or abroad, by a regular survey, on complaint 
of the mate and a majority of the seamen. But this very sel¬ 
dom occurs in practice. If seamen, after being shipped, refuse 
to proceed upon their voyage, and are complained of and arrested, 
the court will inquire into the condition of the vessel, and if the 
complaint of the seamen is justified, in a greater or less degree, 
will discharge them, or mitigate or reduce their punishment. 

Fifth. As to sickness, our statutes require that every ship 
of the burden of one hundred and fifty tons or more, navigated 
by ten persons or more in the whole, and bound on a voyage 
without the limits of the United States, and also that vessels of 
seventy-five tons or more, navigated by six or more persons in 
the whole, bound from the United States to any port in the 
West Indies, shall have a proper medicine-chest on board. 
Moreover, twenty cents a month are deducted from the wages 
of every seaman to make up a fund for the maintenance of 
marine hospitals, to which every sick seaman may repair with- 


352 


THE LA W OF SHIPPING. 


out charge. In addition to this the general law-merchant 
requires every ship-owner or master to provide suitable medicine, 
medical treatment, and care, for every seaman who becomes 
sick, wounded, or maimed, in the service of the ship, at home or 
abroad, at sea or on shore; unless this is caused by the miscon¬ 
duct of the seaman himself. The right to these things extends 
to the officers of the ship. 

Sixth. The right of the seaman to be brought back to his 
own home is very jealously guarded by our laws. The master 
should always present his shipping articles to the consul or 
commercial agent of the United States, at every foreign port 
which he visits, but is not required by law to do this unless the 
consul desires it. He must, however, present them to the first 
boarding officer on his arrival at a home port. And if, upon an 
arrival at a home port from a foreign voyage, it appears that any 
of the seamen are missing, the master must account for their 
absence. If he discharge a seaman abroad with his consent, he 
must pay to the American consul of the port, or the commercial 
agent, over and above the wages then due, three months’ wages, 
of which the consul gives two to the seaman, and remits one to the 
treasury of the United States to form a fund for bringing, home 
seamen from abroad. This obligation does not apply where the 
seaman is discharged because the voyage is necessarily broken 
up by a wreck, or similar misfortune. But proper measures must 
be taken to repair the ship if possible, or to obtain her restora¬ 
tion, if captured. And the seamen may hold on for a reasonable 
time for this purpose, and if discharged before, may claim the 
extra wages. 

Our consuls and commercial agents may authorize the dis¬ 
charge of a seaman abroad for his gross misconduct, and he then 
has no claim for the extra wages. On the other hand, if he be 
treated cruelly, or if the ship be unseaworthy by her own fault, 
or if the master violate the shipping articles, the consul or 
commercial agent may direct the discharge of the seaman ; and 
he then has a right to these extra wages, and this even if the 
seaman had deserted the ship by reason of such cruelty. They 
may also send our seamen home in American ships, which are 
bound to bring them for a compensation not to exceed ten dol- 


PILOTS. 


353 


lars each, and the seamen so sent must work and obey as if 
originally shipped. It is of great importance that the powers 
and duties of our consuls abroad should be distinctly defined 
and well known. And Congress has recently enacted an excel¬ 
lent statute on this subject. 

If a master discharges a seaman against his consent, and 
without good cause, in a foreign port, he is liable to a fine 
of five hundred dollars, or six months’ imprisonment. And a 
seaman may recover full indemnity or compensation for his 
loss of time, or expenses incurred by reason of such discharge. 

Seventh. As to the regulation of punishment, flogging has 
been abolished and prohibited by law. Flogging means the use 
of the cat, or a similar instrument, but not necessarily blows 
of the hand, or a stick or a rope. Desertion, in maritime 
law, is distinguished from absence without leave, by the 
intention not to return. This intention is inferred from a 
refusal to return. If he returns and is received, this is a con¬ 
donation (or forgiving) of the offence, and is a waiver of the 
forfeiture. If he desert before the voyage begins, he forfeits 
the advanced wages, and as much more; but he may be 
apprehended by a warrant of a justice, and forcibly compelled 
to go on board, and this is a waiver of the forfeiture. By 
desertion on the voyage, he forfeits all his wages and all his 
property on board the ship, and is liable to the owner for all 
damages sustained in hiring another seaman in his place. 

Desertion, under the statute of the United States on this 
subject, is a continued absence from the ship for more than 
forty-eight hours without leave, and there must be an entry in 
the log-book of the time and circumstance. But any desertion 
or absence without leave, at a time when the owner has a right 
to the seaman’s service, is an offence by the law-merchant, 
giving the owner a right to full indemnity. 


SECTION XII. 

PILOTS. 

An Act of Congress authorizes the several States to make 
their own pilotage laws, and questions under these laws are 
23 


354 


THE LA W OF SHIPPING. 


cognizable in the State courts. No one can act as pilot, and 
claim the compensation allowed by law for the service, unless 
duly appointed. And he should always have with him his 
commission, which should always designate the largest vessel 
he may pilot, or that which draws the most water. If a pilot 
offers himself to a ship that has no pilot, and that is entering 
or leaving a harbor and has not already reached certain geo¬ 
graphical limits, the ship must pay him pilotage fees, whether 
his services are accepted or not. As soon as the pilot stands 
on deck, he has control of the ship. But it remains the mas¬ 
ter’s duty and power, in case of obvious and certain disability, 
or dangerous ignorance or error, to disobey the pilot, and dis¬ 
possess him of his authority; but the master should interfere 
with the pilot only in extreme cases. If a ship neglect to take 
a pilot when it should and can take one, the owners will be 
answerable in damages to shippers or others for any loss which 
may be caused by such neglect or refusal. Pilots are themselves 
answerable for any damage resulting from their own negligence 
or default, and have been held strictly to this liability. 

SECTION XIII. 

MATERIAL MEN. 

Maritime law calls by this name all persons employed to 
repair a ship or furnish her supplies. Such persons, and indeed 
all who work upon her, have a lien on the ship for their charges. 
There is, however, this important distinction. Material men, 
by Admiralty law, have a lien only on foreign ships, and not on 
domestic ships. But many of our States have by statute given 
this lien to material men on all ships without distinction; as in 
New York, Pennsylvania, Massachusetts, Maine, Illinois, Indiana, 
Missouri, Alabama, and Michigan; and in Louisiana the same 
lien exists under the general Spanish law. 

It has been held that such a lien extends beyond mere 
repairs,—certainly to alterations, and perhaps to reconstruc¬ 
tion,—but not to original building, unless the statute includes 
ship-building. A laborer, employed in general work by a ship¬ 
wright or mechanic, and by him sometimes employed on the 


COMMERCIAL FORMS . 


355 


vessel, and sometimes elsewhere, gets no lien on the vessel for 
that part of the labor performed about it. These statute liens 
take precedence of the claims of all other creditors. 

It has been said in previous pages, that our States are for¬ 
eign to each other for most purposes under the law of Admi¬ 
ralty ; and they are so as to the lien of material men. There¬ 
fore, in States in which there is no statute on the subject, mate¬ 
rial men would have a lien for supplies or repairs for a vessel 
belonging to any other of our States, but not for a vessel 
belonging to the State in which the supplies were furnished or 
the repairs were made. See the chapter on Liens. 

( 91 .) 

Bill of Sale of Vessel. 

To all to whom these Presents shall come, Greeting: Know ye, 
that ( name of seller ) of the ( town or city and county 

•where he resides ) in the State of owner (if the seller 

owns only a part of the vessel, here say what part) of the (ship, or what else 
it is) or vessel called the. of the burden of 

tons, or thereabouts, for and in consideration of the sum of 

dollars, lawful money of the United States of America, to me 
(or us, if more sellers than one) in hand paid, before the ensealing and deliv¬ 
ery of these presents, by (name of the buyer) the receipt whereof I (or we) 
do hereby acknowledge, have granted, bargained, and sold, and by these 
presents do grant, bargain, and sell, unto the said (name of the buyer) 

and his 

executors, administrators, and assigns, the whole 

(or name the part) of said or vessel, together with 

the masts, bowsprit, sails, boats, anchors, cables, tackle, apparel, and furni¬ 
ture, and all other necessaries thereunto appertaining and belonging. The 
certificate of the enrollment of which said or 

vessel, is as follows : 

NO. ENROLLMENT. 

In conformity to an Act of Congress of the United States of America, 
entitled “ An Act for enrolling and licensing Ships and Vessels,” etc., passed 
the 18th of February, 1793 ; and “An Act to regulate the Foreign and Coast¬ 
ing Trade on the Northern, North-eastern, and North-western Frontiers of 
the United States, and for other purposes,” passed the 17th of June, 1864, 
and all the acts of the 7th July, 1838, 29th July, 1850, and 6th May, 1864 
(name of the owner ) having taken or subscribed the oath required by 
the said acts, and having sworn that he citizen of 


THE LA W OF SHIPPING. 


356 


the United States, and sole owner, or owners of the 
vessel, called the of 

is at present master ; and is a 
citizen of the United States, and that the said 
vessel was built at 

And 

vessel has deck, 
feet, her breadth 

feet, her 

tons and hundredths. 


or 

whereof 
or 

in the year 18 , as appears by 

having certified that the said 
mast , and that her length is 
feet, her depth 
and that she measures 


Tonnage. 


1 

100 


Capacity under tonnage deck,. 

Capacity between decks above tonnage deck, . . 

Capacity of enclosure on upper deck, . . . . 

Total tonnage,. 


that she is {kindof vessel) and that she has a figure-head or a gallery. 

And the said having agreed to the description 

and admeasurement above specified, and sufficient security having been given, 
in conformity with the terms of the said acts, the said 
has been duly enrolled at the port of 

Given under my hand and seal of office, at the port of 
this day of in the year one thousand 

eight hundred and 

Collector. 

To Have and to Hold the said or vessel, and appur¬ 
tenances thereunto belonging, to him {or them), the said {name of the 

buyer ) and his {or their) executors, administrators, and assigns, to the sole 
and only proper use, benefit, and behoof of him {or them), the said 
{name of the buyer) and his {or their) executors, administrators, and assigns 
forever; and I {or we) the said {name of the seller) ha and by these pres¬ 
ents do promise, covenant, and agree, for myself {or ourselves) and my {or 
our) heirs, executors, administrators, and assigns, to and with the said 
{name of buyer) and with his {or their) heirs, executors, administrators, and 
assigns, to warrant and defend the said or vessel, and all 

the other before-mentioned appurtenances against the lawful claims and 
demands of all and every person or persons whomsoever, and that I {or we) 
ha good right and authority to sell and dispose of the same in manner 
aforesaid. 

In Testimony Whereof, The said has hereunto 

set his hand and seal, this day of 

one thousand eight hundred and 

{Signature) {Seal.) 

Sealed and Delivered in the Presence of 




COMMERCIAL FORMS. 


357 


State of 

County. 

I, a Notary Public in and for the in the 

County of and State of , do hereby certify, 

that personally known to me as the same person whose 

name subscribed to the annexed instrument of writing, appeared before 
me this day in person, and acknowledged that signed, sealed, 

and delivered the said instrument or writing as free and 

voluntary act, for the uses and purposes therein set forth. 

Given under my hand and notarial seal, this day of 

A.D. 18 



( 92 .) 


Notary Public. 


Mortgage of a Vessel. 

Know all Men by these Presents, That I (or we , giving the names 
and residence of all the mortgagors) am (or are) 

held and firmly bound unto (the names and residence of the mortgagee) in 
the just and full sum of dollars, lawful money of the United 

States of America, to be paid to the said or his (or their) 

executors, administrators, or assigns; for which payment well and truly to be 
made, I bind myself, my heirs, executors, and administrators 
firmly by these presents. 

Dated at this day of in 

the year one thousand eight hundred and 

Whereas, (navie of the mortgagee) has this day lent and advanced 

unto the said (name of the viortgagor) the sum of dollars 

on the body, tackle, and appurtenances of the 

or vessel called the of the burden of tons, or 

thereabouts; the said (name of the ?nortgagor) being the (owner) 

of the same. 

Now the Condition of this Obligation is such, That if the said 
(name of the 7nortgagor) shall pay or cause to be paid to the said (name 
of the mortgagee) the sum of dollars (the amount loaned), and 

interest thereon on or before the day of 

in the year 18 

then this obligation to be void; otherwise, to remain in full force and 
virtue. And in consideration of and as security for said loan as aforesaid, 
the said (vessel, or ship , or steamer, as it may be) is by these presents 

assigned, pledged, mortgaged, set over, and conveyed to the said 

heirs and assigns ; the certificate of the enrollment of which vessel 
is as follows, viz.: 

(Enrollmetit as in the previous form of a Bill of Sale of a Vessel.) 


THE LA W OF SHIPPING. 


358 

It being Mutually Understood and Agreed, That in case the amount 
of said loan and interest, or any part thereof, according to the terms of 
these presents, shall remain due and unpaid to said (3 name of mortgagee) 
after the expiration of , the said (name of mortgagee ) may 

take possession of said and appurtenances, and sell the 

same at public auction, in order to satisfy the amount then due, without any 
proceedings in court or otherwise, for the purpose of authorizing such sale, 
and thereupon may execute and deliver a sufficient bill of sale to transfer 
completely to any purchaser or purchasers all title and property in and to 
the said and appurtenances, to the said ( name of 

mortgagor) as {owner) thereof, now belonging. 

The said {name of the mortgagee) thereupon to account to the said 
{name of the mortgagor) for any surplus of such sale, after paying all 
charges and expenses. 

And in case of such sale as aforesaid, the said {na7ne of the mort¬ 
gagor) executors, administrators, or assigns, shall, whenever thereto re¬ 
quested, make, execute, and deliver to such purchaser or purchasers, another 
bill of sale of said and appurtenances, in which the 

enrollment shall be recited as above, for the transferring completely to said 
purchaser or purchasers all the {right), {interest\ and {claim), of said 
executors, administrators, or assigns, as {owner) of said 

. And in default of the prompt execution and delivery of such 
other bill of sale to such purchaser or purchasers, by the said 
when thereto requested, the said is hereby constituted 

and appointed the legal attorney of the said for the purpose 

of making, executing, and delivering such bill of sale, and the said 
hereby ratifies and confirms the act of the said as 

attorney for said purpose. 

And it is hereby further Agreed, That insurance shall be made at 
some office in on the said for the security of the 

said {name of the mortgagee) to an amount not less than the sum loaned 
as aforesaid, and the said {name of the mortgagee) is hereby authorized 
to procure such insurance, at the expense of the said {name of the mort¬ 
gagor) if not seasonably obtained by him. 

{Signature.) {Seal.) 

Signed , Sealed , and Delivered in Presence of 
{Witness.) 


State of 

County of 

On the day of in the year one thousand 

eight hundred and before me personally came 

the individual described in, and who executed the foregoing instrument, 
and acknowledged that he executed the same. 



COMMERCIAL FORMS. 


359 


( 93 .) 

A Charter-Party. 

This Charter-Party, Made and concluded upon in the 

day of in the year one thousand eight 

hundred and between (name of the owtier) owner of 

the of of the burden of tons 

or thereabouts, register measurement, now lying in the harbor of 
of the first part, and {name of the hirer) of the second part, witnesseth, 
that the said part of the first part, for and in consideration of the covenants 
and agreements hereinafter mentioned, to be kept and performed by the said 
part of the second part, do covenant and agree on the freighting and 
chartering of the said vessel unto the said part of the second part, for the 
voyage from the port of 

on the terms following ; that is to say,— 

First. The said part of the first part do engage that the said vessel 
in and during the said voyage shall be kept tight, stanch, well-fitted, tackled, 
and provided with every requisite, and with men and provisions necessary 
for such a voyage. 

Second. The said part of the first part do further engage that the 
whole of said vessel (with the exception of the cabin, the deck, and the 
necessary room for the accommodation of the crew, and of the sails, cables, 
and provisions) shall be at the sole use and disposal of the said part of the 
second part during the voyage aforesaid ; and that no goods or merchandise 
whatever shall be laden on board, otherwise than from the said part of the 
second part, or agent, without consent, on pain of forfeiture of 
the amount of freight agreed upon for the same. 

Third. The said part of the first part do further engage to take and 
receive on board the said vessel, during the aforesaid voyage, all such lawful 
goods and merchandise as the said part of the second part, or agents, 
may think proper to ship. 

And the said part of the second part, for and in consideration of the 
covenants and agreements to be kept and performed by the said part of the 
first part, do covenant and agree with the said part of the first part, to 
charter and hire the said vessel as aforesaid, on the terms following, that is 
to say:— 

First. The said part of the second part do engage to provide and 
furnish to the said vessel 

Second. The said part of the second part do further engage to pay 
to the said part of the first part, or agent, for the charter or freight 
of the said vessel during the voyage aforesaid, in the manner following, that 
is to say:— 

It is further agreed between the parties to this instrument, that the said 


THE LA W OF SHIPPING. 


360 

part of the second part shall be allowed, for the loading and discharging 
of the vessel at the respective ports aforesaid, lay days as follows, that is to 
say:— 


and in case the vessel is longer detained, the said part of the second part 
agree to pay to the said part of the first part, demurrage at the rate of 
Spanish milled dollars per day for each and every day so detained, 
provided such detention shall happen by default of the said part of the 
second part, or agent. 

It is further understood and agreed, that the cargo shall be received and 
delivered alongside within reach of the vessel’s tackles. 

It is also further understood and agreed, that this charter shall commence 
when the vessel is ready to receive cargo at her place of loading, and notice 
thereof is given to the part of the second part, or to agent . 


To the true and faithful performance of all the foregoing covenants and 
agreements, the said parties, each to the other, do hereby bind themselves, 
their executors, administrators, and assigns, and also the said vessel, freight, 
tackle, and appurtenances; and the merchandise to be laden on board, each 
to the other, in the penal sum of 

In Witness Whereof, The said parties have hereunto interchangeably 
set their hands and seals, this day of 18 

{Signatures) {Seals.) 

Signed, Sealed , a?id Delivered in the Presence of 
( Witnesses.) 


( 94 .) 


A Bill of Lading. 

Shipped, in good order and well conditioned, by ( name of the ship¬ 
per) on board the called the whereof 

is master, now lying in the port of and bound 

for 

To say :—( here describe or enumerate the parcels) 


being marked and numbered as in the margin, and are to be delivered in the 
like good order and condition, at the aforesaid port of (the 

dangers of the seas only excepted), unto {the name of the consignee) or to 
assigns, he or they paying freight for the said 
{here specify the rate of freight agreed to be paid) 
with primage and average accustomed. 

In Witness Whereof, The master or purser of the said vessel hath 
affirmed to bills of lading, all of this tenor and date ; one of 

which being accomplished, the others to stand void. 

Dated in the day of 


18 

{Signature.) 


COMMERCIAL FORMS. 


36l 


( 95 .) 

Shipping Articles, in Common Use. 

United States of America. It is agreed, between the master and sea¬ 
men, or mariners, of the (name of the •vessel') of 

whereof 

is at present master, or whoever shall go for master, now bound from the port 
of , to 

And it is hereby expressly agreed, that should the said ship on the said 
voyage be seized, detained, or fined, for smuggling tobacco, or any other 
article, by one or more of the undersigned sailors, cooks, or stewards, they 
shall all be responsible for the damages thence resulting, and shall severally 
forfeit their wages, and all their goods and chattels on board, to the amount 
of such damage, and that the certificate of the person or persons who may 
seize, detain, or fine the said ship for smuggling, signed by him or them, and 
verified by the American consul at under his seal of office, shall 

be conclusive evidence of the facts therein stated, in all courts whatsoever, 
especially and as to the fact that smuggling had been committed, the indi¬ 
vidual or individuals by whom the same had been committed, the amount of 
the fine imposed therefor upon the said ship, the incidental expenses thereon, 
and the number of days the said ship was detained in consequence thereof. 
No grog allowed, and none to be put on board by the crew ; and no profane 
language allowed, nor any sheath-knives permitted to be brought or used on 
board. 

That, in consideration of the monthly or other wages against each respec¬ 
tive seaman or mariner’s name hereunder set, they severally shall and will 
perform the above-mentioned voyage: And the said master doth hereby 
agree with and hire the said seamen or mariners for the said voyages, at 
such monthly wages or prices, to be paid pursuant to this agreement, and 
the laws of the Congress of the United States of America: And they, the 
said seamen or mariners, do severally hereby promise and oblige themselves 
to do their duty, and obey the lawful commands of their officers on board the 
said vessel, or the boats thereunto belonging, as become good and faithful 
seamen or mariners ; and at all places where the said vessel shall put in, or 
anchor at, during the said voyage, to do their best endeavors for the preser¬ 
vation of the said vessel and cargo, and not to neglect or refuse doing their 
duty by day or night, nor shall go out of the said vessel on board any other 
vessel, or be on shore, under any pretence whatsoever, until the above-said 
voyage be ended, and the said vessel be discharged of her loading, without 
leave first obtained of the captain or commanding officer on board ; that in 
default thereof, he or they will be liable to all the penalties and forfeitures 
mentioned in the Marine Law, enacted for the government and regulation of 
seamen in the merchants’ service, in which it is enacted, “ That if any sea¬ 
man or mariner shall absent himself from on board the ship or vessel, with¬ 
out leave of the master or officer commanding on board, and the mate or other 


THE LA W OF SHIPPING. 


362 

officer having charge of the log-book shall make an entry therein of the name 
of such seaman or mariner, on the day on which he shall so absent himself; 
and if such seaman or mariner shall return to his duty within forty-eight 
hours, such seaman or mariner shall forfeit three days’ pay for every day 
which he shall so absent himself, to be deducted out of his wages ; but if any 
seaman or mariner shall absent himself for more than forty-eight hours at 
one time, he shall forfeit all wages due to him, and all his goods and chattels 
which were on board the said ship or vessel, or in any store where they may 
have been lodged at the time of his desertion, to the use of the owner or 
owners of the said ship or vessel, and moreover shall be liable to pay him or 
them all damages which he or they may sustain by being obliged to hire other 
seamen or mariners in his or their place.” 

And it is further agreed, that in case of desertion, death, or imprisonment, 
the wages are to cease. 

And it is further agreed by both parties, that each and every lawful com¬ 
mand which the said master or other officer shall think necessary hereafter 
to issue for the effectual government of the said vessel, suppressing immor¬ 
ality and vice of all kinds, shall be strictly complied with, under the penalty 
of the person or persons disobeying forfeiting his or their whole wages or 
hire, together with everything belonging to him or them on board the said 
vessel. 

And it is further agreed on, that no officer or seaman belonging to the 
said vessel shall demand or be entitled to his wages, or any part thereof, 
until the arrival of said vessel at the said vessel’s final port of discharge, and 
her cargo delivered. 

And it is hereby further agreed, between the master, officers and seamen 
of the said vessel, that whatever apparel, furniture, and stores each of them 
may receive into their charge, belonging to the said vessel, shall be accounted 
for on her return ; and in case anything shall be lost or damaged, through 
their carelessness or insufficiency, it shall be made good by such officer or 
seaman, by whose means it may happen, to the master and owners of the said 
vessel. 

And whereas, it is customary for the officers and seamen, while the vessel 
is in port, or while the cargo is delivering, to go on shore at night to sleep, 
greatly to the prejudice of such vessel and freighters, be it further agreed by 
the said parties, that neither officer nor seaman shall, on any pretence what¬ 
ever, be entitled to such indulgence, but shall do their duty by day in dis¬ 
charge of the cargo, and keep such watch by night as the master shall think 
necessary to order relative to said vessel or cargo ; and whereas it frequently 
happens that the owner or captain incurs expenses while in a foreign port, 
relative to the imprisonment of one or more of his officers or crew, or in the 
attendance of nurses, or in the payment of board on shore for the benefit of 
such person or persons : now it is understood and agreed by the parties here¬ 
unto, that all such expenditures as may be incurred by reason of the forego¬ 
ing premises shall be charged to, and deducted out of the wages of, any offi- 


COMMERCIAL FORMS . 363 

cer or such one of the crew by whose means or for whose benefit the same 
shall have been paid. 

And whereas, it often happens that part of the cargo is embezzled after 
being safely delivered into lighters, and as such losses are made good by the 
owners of the vessel, be it therefore agreed by these presents, that whatever 
officer or seaman the master shall think proper to appoint, shall take charge 
of her cargo in the lighters, and go with it to the lawful quay, and there 
deliver his charge to the vessel’s husband, or his representative, to see the 
same safely landed. 

That each seaman or mariner who shall well and truly perform the above- 
mentioned voyage (provided always that there be no desertion, plunderage, 
embezzlement, or other unlawful acts committed on the said vessel’s cargo or 
stores) shall be entitled to the payment of the wages or hire that may become 
due to him pursuant to this agreement, as to their names is severally affixed 
and set forth : Provided ’ nevertheless , that if any of the said crew disobey 
the orders of the said master or other officer of the said vessel, or absent 
himself at any time without liberty, his wages due at the time of such dis¬ 
obedience or absence shall be forfeited ; and in case such person or persons 
so forfeiting wages shall be reinstated or permitted to do further duty, it shall 
not do away such forfeiture. It being understood and agreed, by the said 
parties, that parol proof of the misconduct, absence, or desertion of any 
officer or any of the crew of said vessel, may be given in evidence at any trial 
between the parties to this contract, any act, law, or usage to the contrary 
thereof notwithstanding. 

In Testimony Whereof, and for the due performance of each and every 
of the above-mentioned articles and agreements, and acknowledgment of 
their being voluntarily, and without compulsion or any other clandestine means 
being used, agreed to and signed by us, we have each and every of us here¬ 
unto affixed our hands, the month and day against our names as hereunder 
written. 

And it is hereby understood and mutually agreed, by and between the 
parties aforesaid, that they will render themselves on board the said vessel, 
on or before the day of 

18 at o’clock in the noon. 

This is signed by all the officers and crew, under seventeen 
columns, which give the following particulars : Date of entry, 
names, stations, birthplace, age, height in feet and inches, wages 
per month, advance wages, advance abroad, hospital money, time 
of service in months and days, whole wages, wages due, sureties, 
witness. On the back of this instrument is usually a receipt in 
full in the following words. It should be remarked, however, 
that the sailor’s discharge of all demands for assault and battery, 
or imprisonment, etc., is of little, if any, legal force. 


THE LA W OF SHIPPING. 


364 

We, the undersigned, late mariners on board the 
on her late voyage described on the other side of this instrument, and now 
performed to this place of payment, do hereby, each one for ourselves, with 
our signatures, acknowledge to have received of agent 

or owner of said the full sum hereunder set against our 

names ; being in full amount of our wages for our services, and all demands 
for assault and battery, or imprisonment, of whatever name or nature, against 
said her owners or officers, to the day or date here¬ 

under also set against our names. 

( Signatures .) 

(960 

A Bottomry Bond. 

Know all Men by these Presents, That I (name of the ?naster or of 
the owner if the Bond is made by him), now master and commander of the 
or vessel called the of the burden of 

tons, or thereabouts, now lying in the port of 
am held and firmly bound unto ( name of 

the lender who is the obligee of the Bond) 

in the sum of lawful money of the United States of 

America, to be paid to the said or to 

certain attorney , executors, administrators, or assigns ; 
for which payment, well and truly to be made, I bind myself, my heirs, exec* 
utors, and administrators, and also the said vessel, her tackle, apparel, and 
furniture, firmly by these presents. Sealed with my seal, at 
this day of in the year of our Lord 

one thousand eight hundred and 

Whereas, The above bounden {name of the obligor) has been obliged 
to take up and borrow, and hath received of the said 

for the use of the said vessel, and for the purpose of fitting the same for sea, 
the sum of lawful money of the United States of 

America, which sum is to be and remain as a lien and bottomry on the said 
vessel, her tackle, apparel, and furniture, 

at the rate or premium of {state the rate of the maritime interest) for the 
voyage. In consideration whereof, all risks of the seas, rivers, enemies, 
fires, pirates, &c., are to be on account of the said {na?ne of the lender). 
And for the better security of the said sum and premium, the said master 
doth, by these presents, hypothecate and assign over to the said 

heirs, executors, administrators, and assigns, the said vessel, her 
tackle, apparel, and furniture. 

And it is hereby declared, that the said vessel, is thus hypothe¬ 

cated and assigned over for the security of the money so borrowed, and 
taken up as aforesaid, and shall be delivered for no other use or purpose 
whatever, until this bond is first paid, together with the premium hereby 
agreed to be paid thereon. 


COMMERCIAL FORMS. 


365 

Now the Condition of this Obligation is such, That if the above 
bounden ( the borrower ) shall well and truly pay, or 

cause to be paid, unto the said ( the lender) 

the just and full sum of lawful money as aforesaid, being the 

sum borrowed, and also the premium aforesaid, at or before the expiration 
of days after the arrival of the said vessel at 

then this obligation, and the said hypothecation, to be void and of no effect, 
otherwise to remain in full force and virtue. Having signed and executed 
two bonds of the same tenor and date, one of which being accomplished, the 
other to be void and of no effect. 

( Signature.) (Seal.) 

Signed, Sealed\ and Delivered in the Presence of 

I do not give the form of a Respondentia Bond. This con¬ 
tract is now unusual, and is made only when some special 
emergency calls for it, and must then be framed to suit that 
emergency, and express the special terms of the bargain. 
The foregoing form, in connection with what is said of 
Respondentia Bonds in the text, and the points in which they 
resemble Bottomry Bonds and those in which they differ from 
them, will enable any one to frame a Respondentia Bond suited 
to most cases. 

( 97 .) 

Oath or Affirmation of Consignee or Agent. 

District and Port of Philadelphia. I (name of the consignee) 
do solemnly and truly swear (or affirm) that the invoice and bill of lading 
now presented by me to the collector of , are the true and 

only invoice and bill of lading by me received, of all the goods, wares, and 
merchandise, imported in the (name of the vessel) whereof 

is master, from for account of, any person 

whomsoever, for whom I am authorized to enter the same: that the said 
invoice and bill of lading are in the state in which they were actually 
received by me, and that I do not know nor believe in the existence of any 
other invoice, or bill of lading of the said goods, wares, and merchandise ; 
that the entry now delivered to the collector contains a just and true 
account of the said goods, wares, and merchandise according to the said 
invoice and bill of lading; that nothing has been, on my part, nor to my 
knowledge, on the part of any other person, concealed or suppressed, 
whereby the United States may be defrauded of any part of the duty lawfully 
due on the said goods, wares, and merchandise, and that if, at any time 
hereafter, I discover any error in the said invoice, or in the account now 
rendered of the said goods, wares, and merchandise, or receive any other 


1 


THE LA W OF SHIPPING. 


366 

invoice of the same, I will immediately make the same known to the col¬ 
lector of the district 

And I do further solemnly and truly swear {or affirm) that, to the best of 
my knowledge and belief, (na 7 ne and residence of the owner of the 

goods) is owner of the goods, wares, and merchandise, mentioned in the 
annexed entry ; that the invoice now produced by me exhibits the actual 
cost, or fair market-value, of the said goods, 

wares, and merchandise, all the charges thereon, and no other or different 
discount, bounty, or drawback, but such as has been actually allowed on the 
same. this day of 18 

(Signature.) 

Before me, Collector. 

(98.) 

Custom House Power of Attorney. No. 201. 

Know all Men by these Presents, That I (na?ne of principal) 

do make, constitute, and appoint (name of attorney) my true and lawful 
attorney for me, and in my name and stead, to enter in due form of law, at 
the Custom House in the city of all goods, w T ares, and 

merchandise, which have been imported or may hereafter be imported, by 

• or which have arrived, consigned, or 

may hereafter arrive, consigned to , or in which 

or may be interested or concerned. 

And for me and in my name and stead to sign, seal, execute, and deliver 
all and every bond and bonds which may be required to secure the duties 
thereon, or for the transportation or exportation of the same ; or any other 
bond or bonds required by the revenue laws or the regulations of the 
Treasury Department of the United States, or the collector of the customs 
of the district of relative to any such merchandise ; or 

which may be necessary to obtain the debenture and debentures, upon such 
of the said goods, wares, and merchandise as may be exported for me or on 
my account. To have, take, and receive all debenture certificates to be 
issued thereupon for me and in my name 

to indorse, assign, and transfer the same ; or have, take, and receive the 
moneys due and to grow due thereon : And generally, as my attorney to do, 
transact, and perform all custom-house business, of what kind soever, in 
which I am or may be interested or concerned, as fully and effectually, to 
all intents and purposes, as I if present there in person could do ; also to 
set my seal to any instrument which may be necessary in the premises, and 
the same to acknowledge for me to be my deed; and generally to do and 
perform all things relating to the premises, which I could lawfully do, if 
personally present, and as fully and effectually to every intent and purpose, 
although the same should seem to require more precise or special authority 
than is herein expressed. And especially authorizing and empowering my 
said attorney, for me and in my name and stead to sign, seal, execute, and 


COMMERCIAL FORMS. 


367 

deliver all bonds of indemnity and other specialties, and also all other 
documents which maybe necessary for effecting the premises ; hereby ratify¬ 
ing all and whatsoever my said attorney may lawfully do by virtue hereof. 

And I hereby further authorize my said attorney at any time, and from 
time to time at his discretion, by proper letters of attorney, to substitute 
any other person or persons for himself in my place, and the same at his 
pleasure to revoke ; hereby giving to the substitute or substitutes, as full 
power and authority in the premises as is hereby given to my said attorney. 
And also hereby ratifying and confirming all and every act, matter, and 
thing that my said attorney or his substitute or substitutes may do in the 
premises, by virtue of these presents. 

And it is hereby declared and understood, that this power shall be and 
remain in full force and virtue until revoked by written notice given to the 
collector. 

In "Witness Whereof, I have hereunto set my hand and seal this 
day of 18 

(Signature!) (Seal!) 

Signed , Sealed ., a 7 id Delivered in Pi'esence of 
State of 

Be it Known, That on the day of 18 * 

personally appeared and 

acknowledged before me the foregoing power of attorney to be 
free act and deed. 

In Testimony Whereof, I have hereunto set my hand and seal of office 
the day of 18 


( 99 .) 

Maritime Protest. 

UNITED STATES OF AMERICA. 

Notary. 

State of County of 

By this Public Instrument of Protest, Be it known, that on the 

day of in the year of our Lord one thousand eight 

hundred and before me, a Notary Public in 

and for the State of County of and dwelling in 

the city of , State of , duly commissioned and 

sworn, personally came and appeared names of all the parties who 

make the protest, with a description of each of them, as to occupation and 
residence ) which said appearers, after having been duly sworn by 

me, the said notary, upon the Holy Evangelists of Almighty God, voluntarily, 
freely, and solemnly declare and depose as follows, to wit: that the 
(name of the vessel, describing her generally), on the day of 

in the year 18 sailed from the port of 


THE LAW OF SHIPPING. 


368 

bound for the port of with a cargo of 

that when they started, as aforesaid, the said was stout, 

stanch and strong; had her cargo well and sufficiently stowed and secured ; 
was well manned, tackled, victualled, apparelled and appointed ; and was in 
every respect fit for the voyage she was about to undertake : And thereafter, 
on the day of in the year 18 (here ?nust be set 

forth with so?ne minuteness the place of any accident or loss , and the circum¬ 
stances of the occurrence ) 

Now, therefore, because of the premises, and as all the loss, damage and 
injury which already have or may hereafter appear to have happened or 
accrued to the said or her said cargo, has been occasioned 

solely by the circumstances hereinbefore stated, and cannot nor ought not 
to be attributed to any insufficiency of the said or default of 

him, the said his officers or crew ; he now requires me, 

the said notary, to make his protest and this public act thereof, that the 
same may serve and be and remain in full force and virtue, as of right shall 
appertain. And thereupon the said doth protest, 

and I, the said notary, at his special instance and request, do, by these 
presents, publicly and solemnly protest against winds, weather (and what¬ 
ever else caused the loss, as fire , pirates , &*c), and against all and every 
accident, matter and thing, had and met with as aforesaid, whereby or by 
means whereof the said or her cargo, already has, or 

hereafter shall appear to have suffered or sustained damage or injury, for 
all losses, costs, charges, expenses, damages, and injury, which the said 
the owner or owners of the said or the 

owners, freighters or shippers of her said cargo, or any other person or 
persons concerned in either, already have or may hereafter pay, sustain, 
incur, or be put unto by, through, or on account of the premises, or for 
which the insurer or insurers of the said or her cargo, 

is or are respectively liable to pay, or make contribution or average, accord¬ 
ing to custom, or their respective contracts or obligations ; so that no part 
of such losses and expenses already incurred, or hereafter to be incurred, 
do fall upon him, the said his officers and crew. 

We, (repeat here the ?ia 7 nes of the appearers) do solemnly swear that 
the foregoing statement is correct, and contains a true account of all the facts 
and circumstances of the case, to the best of our knowledge. 

(Signatures of all the afpearersl) 


Thus Done and Protested, at my office, in the city of , this 

day of in the year 01 our Lord one thousand 

eight hundred and 

Notary Public , County of State of 


To all to whom these Presents shall come, I, 
Public, duly commissioned and qualified, residing at 
County of and State of 


Notary 
, in the 
, do hereby certify 


HOW THE CONTRACT OF INSURANCE IS MADE. 


369 

that the foregoing, purporting to be a copy of the protest of the master and 

a part of the crew of the bearing date the 

day of last, is a true and correct copy of said protest, which 

was made before me, examined and compared with the original draft of the 

same, drawn up and recorded in my office, in Book page 

and following: 

In Testimony Whereof, I have hereunto set my hand, and affixed my 
notarial seal, this day of A.D. 18 

(Signature?) (Seal.) 

( 100 .) 

A Steamboat Warrant, as used in the Western States. 

Know all Men by these Presents, That we (name of debtor) 

as principal, and (names of owners of the steamboat) owners of the 

steamboat as security, are held and 

firmly bound unto (name of creditor) in the sum of 

dollars, for the payment of which we bind ourselves, our heirs, executor, 
and administrators, firmly by these presents. Sealed with our seals, and 
dated this day of eighteen hundred 

and 

The Condition of the above Obligation is such, That, whereas, the 
said (na7ne of creditor) as plaintiff has sued out of the office of 

justice of the peace, a warrant against the steamboat (7iame 
of the steamboat) returnable forthwith; being on a demand for the sum of 
dollars, and cents. 

Now, if the said (7ia77te of the debtor) shall satisfy the amount which 
shall be adjudged to be owing and due to the said plaintiff in the determina¬ 
tion of said suit, together with all costs accruing, then this obligation to be 
void, otherwise to remain in full force. 

(Signatures?) (Seals?) 

Approved, (Sheriff or Constable?) 


CHAPTER XXVI. 

MARINE INSURANCE. 


SECTION I. 

HOW THE CONTRACT OF INSURANCE IS MADE. 

At the present day insurance is seldom made by individuals. 
Formerly, this was the universal custom in our commercial cities. 
Afterwards, companies were incorporated for the purpose of 
24 




3/o 


MARINE INSURANCE . 


making insurance on ships and their cargoes ; and the manifold 
advantages of this method have caused it to supersede the other. 
But an insurance company is not bound to insure for all who 
offer, and it has been held that an action will not lie against 
insurers for combining not to insure for a certain person, how¬ 
ever malicious their motive may be. 

The contract of insurance binds the insurer to indemnify the 
insured against loss or injury to certain property or interests 
which it specifies, from certain perils which it also specifies. 
The consideration for this obligation on the part of the insurer 
is the premium paid to the insurer, or promised to be paid to 
him, by the insured. 

The instrument in which this contract is expressed is called 
a Policy of Insurance. But no instrument is essential to the 
validity of the contract; for if the proposals of the insured are 
written in the usual way in the proposal book of the insured, 
and signed by their officer with the word “done,” or “accepted,” 
or in any usual way to indicate that the bargain is made, it is 
valid, although no policy be delivered ; and it would be construed 
as an insurance upon the terms expressed in the policy com¬ 
monly used by that company. 

If proposals are made, on either side, by letter, and accepted 
by the other party, also. by letter, this is a valid contract of 
insurance as soon as the party accepting has mailed his letter 
to that effect, if he have not previously received notice of a with¬ 
drawal of the proposals. 

The form of the policy is generally that which has been used 
for many years both in England and in this country, with such 
changes and modifications only as will make it express more 
accurately the bargain between the parties. And for this pur¬ 
pose it may be and is varied at pleasure. 

It is subscribed only by the insurers ; but binds both parties. 
The insured are bound for the premium, although no note is 
given. The date may be controlled by evidence showing when 
it was made and delivered; but if delivered after its date, it 
takes effect at and from its date, if that were the intention of the 
parties. 

It may be effected on application of an agent of the insured. 


HOW THE CONTRACT OF INSURANCE IS MADE . 371 

if he have full authority for this purpose; which need not be in 
writing. But a mere general authority, even if it related to 
commercial matters, or to a ship itself, as that of a “ ship’s hus¬ 
band,” is not sufficient. 

A party may be insured who is not named, if “for whom it 
may concern,” or words of equivalent import, are used. But a 
party who seeks to come in under such a clause must show that 
he was interested in the property insured at the time the insur¬ 
ance was made, and that he was in the contemplation of the 
party asking insurance. The phrase “ on account of owners at 
the time of'loss,” or an equivalent phrase, will bring in those 
who were intended, if they owned the property when the loss 
occurred, although there were assignments and transfers between 
the time of insurance and the loss. 

Each person whose several interest is actually insured by 
any such general phrase may demand or sue in his own name. 

If the nominal insured is described as “ agent ” generally, 
this is equivalent to “for all whom it may concern.” And an 
insurance “ for-” will be read as for all whom it may con¬ 

cern, if that were intended. So, if the designation of the insured 
be common to many persons, the intention of the parties must 
decide for whom it is made. Whatever is written on any part 
of the sheet containing the policy, or even on a separate paper, 
if referred to or signed by the parties as a part of the policy, is 
thereby made a part of it. 

But things said by either party while making their bargain, 
or written on other paper, and not so referred to or signed, form 
no part of it. The policy may expressly provide that its terms 
shall be made definite, especially as to the property insured, by 
subsequent indorsements or additions. Thus, it is very common 
to insure property to a certain amount, “from A to B, on board 
ship or ships, as shall hereafter be indorsed on this policy.” 
And when this or any equivalent phrase is used, the insured 
requests the insurers to indorse on the policy the name of the 
vessel, and the amount shipped, as soon as he has notice of it. 

Alterations may be made at any time by consent. But a 
material alteration by either party, without the consent of the 
other, renders the contract void; although it was made honestly, 



MARINE INSURANCE. 


372 

in the hope or belief of its being assented to. A court of equity 
will correct a material mistake of fact. 

A policy may be assigned, and the assignee may sue in the 
name of the assignor. If the loss is made by the policy payable 
“to order ” or “to bearer,” it will then by negotiable by indorse¬ 
ment or delivery, but it is not certain that the transferee can 
even then sue in his own name. In New York and some other 
States, not only these assignees, but other assignees of debts or 
contracts, may sue in their own names. 

If the insured transfers the property, unaccompanied by a 
transfer of the policy with consent of the insurer, this dis¬ 
charges the policy, unless it was expressly made for the benefit 
of whoever should be owner at the time of the loss, as before 
stated. There is usually a clause to the effect that the policy 
is void if assigned without the consent of the insurers. But this 
does not apply to an assignment by force of law, as in a case of 
insolvency, or in a case of death. And after a loss has occurred, 
the claim against the insurers is always assignable like any other 
debt. And a seller who remains in possession of the property 
as trustee for the purchaser, or a mortgagor retaining possession, 
may retain the policy, and preserve his rights. 

SECTION II. 

THE INTEREST OF THE INSURED. 

The Contract of Insurance is a contract of indemnity for 
loss. The insured must, therefore, be interested in the prop¬ 
erty at the time of the loss. The value to be paid for may 
be agreed upon beforehand, and expressed in the policy, 
which is then called a valued policy; or left to be ascer¬ 
tained by proper evidence, and the policy is then called an 
open policy. 

This valuation, if in good faith, is binding on both parties, 
even if it be very high indeed. But a wager policy , that is, 
one without interest, is void ; and although there be some 
interest, the valuation may still be so excessive as to be open 
to the objection that the interest is a mere cover, and that the 
contract is void because only one of wager. The valuation 


THE INTEREST OF THE INSURED. 


373 


is void if fraudulent in any respect; as if it cover an illegal 
interest or peril. And in this case the fraud vitiates and 
avoids the whole contract, and the insured recovers nothing. 
And if the valuation is gross and excessive, fraud may be 
presumed. 

The insured may apply his valuation to the whole property, 
or to that part of it which he wishes to insure ; thus he may 
cause himself to be insured for one-half of a cargo, the whole 
of which is valued at $20,000, or for one-half, which half is 
valued at $20,000; and if the policy says, “ Insured $15,000 on 
half of the ship Scipio (or on her cargo), valued at $20,000,” 
whether it is meant that the whole ship (or cargo) is valued at 
$20,000, or the half only that is insured, will be determined by 
a reasonable construction of the language used. If he owns the 
whole, the valuation, in general, will be held to apply to the 
whole ; and only to a part, if he owns only a part 

He may value one thing insured, and not another; or 
may value the same thing in one policy, and not in another ; 
and then the valuation does not affect the policy which does not 
contain it. If only a part of the goods included in the valuation 
are on board and at risk, it applies to them in due proportion to 
their value. 

A valuation of an outward cargo may be taken as a valu¬ 
ation of a return cargo, substituted for the other by purchase, 
and covered by the same policy. And a valuation will cover 
the insured’s whole interest in the thing valued, including 
the premium, unless a different purpose is expressed or indi¬ 
cated. 

A valuation of freight applies to the freight of the whole 
cargo, and if a part only be at risk, it applies in proportion. 
And it applies either to the whole voyage, or to freight earned 
by voyages which form parts of the whole, as may be intended 
and expressed. 

If profits are insured as such,, they are generally valued, but 
may be insured by an open policy. If they are valued, the loss 
of the goods on which the profits were to have been made, 
implies in this country a loss of the valued profits, without proof 
that there would have been any profit whatever; it seems to be 


374 


MARINE INSURANCE. 


necessary in England to show that there would have been some 
profit, and then the valuation attaches. 

It is very common to insure profits, in fact, without saying 
anything about them, by a valuation of the goods sufficiently 
high to include all the profits that can be made upon them. 

In an open policy, where the value insured is to be deter¬ 
mined by evidence, the value of the property—whether ship 
or goods—which is insured, is its value when the insurance 
took effect, including the premium of insurance; as the law 
of insurance intends indemnifying the assured as accurately 
as may be for all his loss. If a ship be insured, its value 
throughout the insurance is the same as at the beginning, with¬ 
out allowance for the effect of time upon it. And all its 
appurtenances, in a mercantile sense of this phrase, enter into 
its value. 

While the value of the property does not vary with time, 
the interest of the insured at the time of the loss (which may 
be the whole, or half, or any other part) is that on which he 
founds his claim. Thus, if an owner of a ship is insured $20,000 
on ship A. B., valued at $30,000, and afterwards sells half of the 
ship, and it is subsequently lost, he recovers only $10,000. 
But if he owned half originally, and insured that, and before 
the loss acquired the other half, he recovers only for the half 
insured. 

Generally, the value of goods is their invoice price, with all 
those charges, commissions, wages, etc., which enter into the 
cost to the owner when the risk commences. The drawback is 
not deducted; and the expenses incurred after the risk begins, 
as for freight, etc., are not included. And the rate of exchange 
at the beginning of the risk is taken. 

SECTION III. 

THE INTEREST WHICH MAY BE INSURED. 

A mere possibility or expectation cannot be insured, but 
any actual interest may be. If one has contracted to buy goods, 
he may insure them, and will recover if the property be in him 
at the time of the loss; for if they are then destroyed, it will be 


THE INTEREST WHICH MA Y BE INSURED. 


375 

his loss. (For what is meant by the property being in him, see 
the chapter on Sales.) 

If one has taken on himself certain risks, or agreed to indem¬ 
nify another for them, he may insure himself against the same 
risks. The policy may express and define the interest in such 
a way that any change in the nature of it will discharge the 
insurance. If it is not so defined and declared, a change, as 
from the interest of an owner to that of a mortgagor, or of a 
mortgagee, will not defeat the policy. 

A mere indebtedness to a party on account of property gives 
the creditor no insurable interest; thus, one who repaired a 
house or a ship cannot insure the house or ship merely because 
the owner owes him ; but if the creditor has a lien on the prop¬ 
erty, this is an insurable interest. And, generally, every bailee 
or party in possession of goods, with a lien on them, may insure 
them. And a lender on bottomry or respondentia may insure 
the ship or goods. And any persons who have possession of 
property, or a right to possession, and may legally make a profit 
out of it, as factors on commission, consignees, or carriers, may 
insure their interest. 

If a mortgagee be insured, and recovers from the insurers, 
he, generally, at least, transfers to them the security for his 
debt, or accounts with them for its value ; because, to the extent 
of that security, he has met with no loss, and, if he did not 
transfer it, would recover his money twice. It should, however, 
be added that where a mortgagee, or one having a lien, insures 
his own interest in property, a payment of a loss to him by the 
insurers does not discharge the debt for which the mortgage or 
the lien is the security. Where, however, the mortgagee is 
trustee for the mortgagor, as where the mortgagor causes insur¬ 
ance to be made on the premises, payable to the mortgagee in 
case of loss, or where the mortgagee effects insurance at the 
expense of the mortgagor, with his consent, payment by the 
insurers would go in discharge of the debt. 

A policy usually adds to the description of the property, 
“lost or not lost.” This phrase makes the policy retrospective; 
and attaches it to the property if that existed when, by the terms 
of the policy, the insurance began, whether this were for a 


MARINE INSURANCE. 


376 

voyage or for a certain time, although it had ceased to exist 
when the policy was made. 

An interest which was originally valid and sufficient cannot 
be defeated by that which threatens, but does not complete an 
actual divestment of the interest in property; therefore, not 
by attachment, or an execution for debt; nor by liability to 
seizure by government for forfeiture ; nor a right in the seller 
to stop the goods in transitu; nor capture; because, after all 
these, the property may remain in or return to the insured. 
But sale on execution, actual seizure by government and for¬ 
feiture, stoppage in transitu , or condemnation by court as 
lawful prize, divest the property, and therefore discharge the 
insurance. 

The insurance never attaches if the interest is illegal origi¬ 
nally; and it is discharged if the interest becomes illegal 
subsequent to the insurance, or if an illegal use of the subject- 
matter of the insurance is intended. And any act is illegal 
which is prohibited by law, or made subject to a penalty. The 
effect would be the same if the policy opposes distinctly the 
principles and the purposes of law, as wagering policies do. 

Mariners, or mates, are not permitted by the law-merchant 
to insure their wages, but may insure goods on board, bought 
with their wages ; and one legally interested in the wages of a 
mariner may insure them ; as one to whom they are assigned by 
order or otherwise. A master may insure his wages, commis¬ 
sions, or any profit he may make out of his privilege. 

An unexecuted intention of illegality, if not distinctly acted 
upon, will not defeat a policy; nor a remote and incidental ille¬ 
gality ; as smuggling stores on board, or not having on board 
the provisions required by law; nor a change from legality to 
illegality, which cannot be proved or supposed to be known to 
the insured. And upon these questions, the court, if the case 
be balanced, will incline to the side of legality. A cargo may 
be insured which is itself lawful, but was purchased with the 
proceeds of an illegal voyage. 

If a severable part of a cargo or a voyage is legal, it may be 
insured, by itself, although other parts are illegal. But if a part 
of the whole property insured together is illegal, this avoids the 
whole policy. 


PRIOR INSURANCE. 


377 

A compliance with foreign registry laws is not necessary, and 
with our own probably is not, to sustain the insurance of an 
actual owner in good faith 

Freight is a common subject of insurance. In common con¬ 
versation, this word means sometimes the cargo carried, and 
sometimes the earnings of the ship by carrying the cargo. The 
latter is the meaning in mercantile law, and especially in the law 
of insurance. It includes in insurance law the money to be 
paid to the owner of a ship by the shipper of goods, and also 
the earnings of an owner by carrying his own goods ; and the 
amount to be paid to the owner by the hirer of his ship, and 
also the profits of such hirer, either by carrying his own goods, 
or by carrying, for pay, the goods of others. 

An interest in freight begins as soon as the voyage is deter¬ 
mined upon, and the ship is actually ready for sea, and goods are 
on board, or are ready to be put on board, or are promised to be 
put on board by a contract which binds the owner of the goods 
to put them on board, for that voyage. 

If a ship is insured on a voyage which is to consist of many 
passages, and sails without cargo, but a cargo is ready for her, 
or contracted for her at the first port she is to reach and sail 
from, the owner has an insurable interest in the freight from the 
day on which she sails from his home port. 

If one makes advances towards the freight he is to pay, and 
this is to be repaid to him by the ship-owner if the freight is 
not earned, the advancer has no insurable interest in what he 
advances ; but if he is to lose it, without repayment, if the ship 
be lost or the freight not earned, he has an insurable interest. 

SECTION IV. 

PRIOR INSURANCE. 

Our marine policies generally provide for this by a clause 
to the effect that the insurer shall be liable only for so much of 
the property as a prior insurance shall not cover. The second 
covers what the first leaves, the third what the second leaves, 
and so on ; and as soon as the whole value of the property is 
covered, the remainder of that policy, and the subsequent polk 


MARINE INSURANCE. 


3 78 

ties, have no effect This priority relates not merely to the 
date of the instrument, but to the actual time of insurance. 
Sometimes the policy provides that the insured shall recover 
only the same proportion of the whole loss which the amount 
insured in that policy is of the whole amount insured by all the 
policies on the whole property. 

Where no provision is made in the policies as to priority, all 
are insurers alike, but all together only of the whole value at 
risk. The insured, therefore, may recover of any one insurer 
at his election, and this insurer may compel the others to con¬ 
tribute to him in proportion to their respective insurances. 

Insurances may be not successive, but simultaneous, and 
then no clause as to prior policies has any application, for then 
no policy is prior to another, and all the insurances are liable 
pro rata. They are simultaneous, if said to be so in the policies, 
which is common ; or if made on the same day, and bearing the 
same date, and there is no evidence as to which was, in fact, 
first made. 

SECTION V. 

DOUBLE INSURANCE AND RE-INSURANCE. 

If there be double insurance, either simultaneously or by 
successive policies in which priority of insurance is not pro¬ 
vided for, we have seen that all are insurers, and liable each in 
proportion; thus, if all the policies cover twice the value of the 
property insured, each policy is valid for one-half of its own 
amount. 

But there is no double insurance, unless all the policies insure 
the very same subject-matter, against the same risks, and, taken 
together, exceed its whole value. 

Many insurances of the same subject-matter, for the benefit 
of different parties, do not constitute double insurance. 

Re-insurance is lawful; for whoever insures another has 
assumed a risk against which he may cause himself to be 
insured. This is often done by companies who wish to close 
their accounts, to lessen their risks, or get rid of some special 
risk. 


EXPRESS WARRANTIES. 


379 


SECTION VI. 

THE MEMORANDUM. 

This word is retained, because the English policies have 
attached to them a note or memorandum providing that the 
insurers shall not be liable for any loss upon certain articles 
therein enumerated (and thence called memorandum articles), 
unless it be total, or greater than a certain percentage. In our 
policies, the same thing is provided for, but usually by a clause 
contained in the body or in the margin of the policy. The gen¬ 
eral purpose is to guard against a liability for injuries which may 
very probably not arise from maritime peril, because the articles 
are in themselves perishable; but which injuries it might not 
be easy to refer to the precise causes which produced them. 
Thus, grain, fish, hides, fruit, etc., are very liable to be some¬ 
what injured on the voyage, and if there has been bad weather, 
or a greater leak than usual, it is impossible to say whether these 
goods have lost value from their own decay, or from a peril of 
the sea. It is therefore provided, that the insurers shall not 
pay unless there be a total loss by a sea-peril, which ends all 
question, or so large a loss as ten or twenty per cent.; for this 
could hardly happen without visible and certain cause. And 
then, if the cause was shown to be not a peril insured against, 
the insurers would not be liable. 

The perishable articles thus excepted, and the percentage of 
loss necessary to charge the insurers, vary very much at differ¬ 
ent times and in different States. 

SECTION VII. 

EXPRESS WARRANTIES. 

A stipulation or agreement in the policy , that a certain 
thing shall be or shall not be, is an express warranty. And 
every warranty must be, if not strictly, at least accurately com¬ 
plied with. Nor is it an excuse that the thing is not mate¬ 
rial ; or that the breach was not intended, or not known; or that 
it was caused by an agent of the insured. A warranty is 
equally effectual if written upon a separate paper, but referred 


38 o 


MARINE INSURANCE. 


to in the policy itself as a warranty. And the direct assertion 
or allegation of a fact may constitute a warranty. 

If the breach of the warranty exists at the commencement 
of the risk, it avoids the whole policy, although the warranty 
was complied with afterwards and before a loss, and although 
all other risks were distinct from that to which the warranty 
related. Thus, if a vessel is warranted “ coppered,” and she is 
not coppered, and is lost by the ignition of cotton in the hold. 
Here, the breach of the warranty, that is, the want of the cop¬ 
per, has nothing to do with the loss; but the insurers would be 
discharged. 

If the breach occur after the risk begins, and before a loss, 
and is not caused or continued by the fault of the insured, the 
insurers are held ; and so they are if a compliance with the war¬ 
ranty becomes illegal after the policy attaches, and it is therefore 
broken. 

The usual subjects of express warranty are, first, the owner¬ 
ship of the property, which is chiefly important as it secures 
the neutrality, or freedom from war-risks, of the property 
insured. The neutrality of the ship and of the cargo must be 
proved by the ship’s having on board all the usual and regular 
documents. False papers may, however, be carried for com¬ 
mercial purposes, either when leave is given by the insurers, or 
when it is permitted by a known and established usage. 

If neutrality is warranted, it must be maintained by a strict 
adherence to all the rules and usages of a neutral trade or em¬ 
ployment. Without warranty, every neutral ship is bound to 
respect a blockade which legally exists by reason of the presence 
of an armed force sufficient to preserve it, and of which the 
neutral has knowledge. 

The second most common express warranty is that of the 
time of the ship’s sailing. She sails when she weighs anchor 
or casts off her fastenings, and gets under way, if the intention 
be to proceed at once to sea without further delay. She must 
have been actually under way. But if she moves with the 
intention of prosecuting her voyage, this is sufficient. But if 
not entirely ready for sea, she has not sailed by merely moving 
down the harbor. If she moves, being ready and intended for 


IMPLIED WARRANTIES. 


381 

sea, but is afterwards accidentally and compulsorily delayed, 
this is a sailing. Nor is the warranty complied with by leaving 
a place to return to it immediately; or by going from one port 
of the coast or island, which she is warranted to leave, to 
another. If the ship is warranted “in such a harbor or port,” 
or “where the ship now is,” this means at the time of the 
insurance. And “warranted in port” means the port of 
insurance, unless another port is expressed or distinctly indica¬ 
ted. 

SECTION VIII. 

IMPLIED WARRANTIES. 

The most important of these warranties—which the law 
implies, or makes for the parties without their saying anything 
about them, although they may, if they please, make them for 
themselves—is that of seaworthiness. By this is meant, that 
every person who asks to be insured upon his ship, by the mere 
force and operation of law, warrants that she is, in every 
respect,—hull, sails, rigging, officers, crew, provisions, imple^ 
ments, papers, and the like,—competent to enter upon and 
prosecute that voyage at the time proposed, and encounter 
safely the common dangers of the- sea. If this warranty be not 
complied with, the policy does not attach, whether the breach 
be known or not, unless there is some peculiar clause in the 
policy waiving this objection. 

If the ship be seaworthy and the policy attaches, no subset 
quent breach discharges the insurers from their liability for a 
loss previous to the breach. Even if the policy does not attach 
at the beginning of the voyage, if the unseaworthiness be 
capable of prompt and effectual remedy, and be soon and 
entirely remedied, the policy may then attach. If the insurance 
is “at and from” a port, there is no implied warranty in the 
nature of a condition precedent to the attaching of the policy, 
that the vessel shall be then seaworthy in the sense of being fit 
for sea, and it is sufficient if she is portworthy. But the policy 
is avoided if she goes to sea in an unseaworthy condition. The 
general rule is, that, if unseaworthiness prevents the policy 
from attaching at the proper commencement of the risk , the 
contract becomes a nullity. 


382 


MARINE INSURANCE. 


If she becomes unseaworthy in the course of the voyage, 
from a peril insufficient to produce it in a sound vessel, this may 
be evidence of inherent weakness and original unseaworthiness; 
and then the policy never attached. But if originally seaworthy, 
and by any accident made otherwise, the policy continues to 
attach until she can be restored to a seaworthy condition by 
reasonable endeavors. And the general rule is, that she must 
be so restored as soon as she can be. It is the duty of the master 
to repair her as soon as he can; by the aid of another ship if 
that may be, but if otherwise, not to keep her at sea if she can 
readily make a port where she can be made seaworthy; and not 
to leave that port until she is seaworthy. It is the rule that a 
ship must not leave a port in an unseaworthy condition, if she 
could there be made seaworthy; if she does, the insurers are no 
longer held. But their liability may be, not destroyed, but only 
suspended, if the seaworthiness be cured at the next port, 
especially if that be not a distant port. 

There cannot possibly be a definite and universal standard 
for seaworthiness. The ship must be fit for her voyage or for 
her place. But a coasting schooner needs one kind of fitness, 
a freighting ship to Europe another, a whaling ship another, a 
ship insured only while in port another. So as to the crew, or 
provisions, or papers, or a pilot, or certain furniture, as a 
chronometer or the like; or the kind of rigging or sails. In 
all these respects, much depends upon the existing and estab¬ 
lished usage. There is, perhaps, no better test than this; the 
ship must have all those things, and in such quantity and of 
such quality as the law requires, provided there is any positive 
rule of law affecting them ; and otherwise such as would be 
deemed requisite according to the common consent and usage 
of persons engaged in that trade. And the reason for this rule 
is, that this is exactly what the insurers have a right to expect, 
and if the insured intend anything less, or the insurers desire 
anything more, it should be the subject of special bargain. 

If a policy be intended to attach when a ship is at sea, the 
ship must be seaworthy in that sense and in that way in which 
a ship of her declared age, size, employment, and character, 
after being at sea for that time, under ordinary circumstances, 


REPRESENTA TION AND CONCEALMENT. 


383 

ought to be in, and may be expected to be in by all concerned. 
The standard of seaworthiness is to be found from the usage 
and understanding of merchants, at the place where the ship 
belongs, and not at that where the ship is insured. 


SECTION IX. 

REPRESENTATION AND CONCEALMENT. 

If there be an affirmation or denial of any fact, or an allega¬ 
tion which would lead the mind to a conclusion, whether made 
orally or in writing, or by exhibition of any written or printed 
paper, or by a mere inference from the words of the policy, 
before the making of the policy, or at the making, and the same 
be false, and tend to procure for him who makes it the bargain, 
or some advantage in the bargain, it is a misrepresentation. 
And it is the same thing, whether it refers to a subject concern¬ 
ing which some representations were necessary, or otherwise. 

Concealment is the suppression of a fact not known to the 
other party, referring to the pending bargain, and material 
thereto. 

A misrepresentation or a concealment discharges the in¬ 
surers. To have this effect, it must continue until the risk 
begins, and then be material. 

It is no defence that it was innocent, and arose from inad¬ 
vertence or misapprehension, because the legal obligation of a 
full and true statement is absolute; nor that the insurers were 
not influenced by it, if it were wilfully made with intention to 
deceive. 

If it be in its nature temporary, and begins after the risk 
begins, and ends before a loss happens, the insurers are not 
discharged. And if it relate to an entirely separate subject' 
matter of insurance, as the goods only, and has no effect upon 
the risk as to the rest, as the ship, for example, it discharges 
the insurers only as to that part. Ignorance is never an excuse, 
if it be wilful and intentional. If one says only he believes so 
and so, the fact of his belief in good faith is sufficient for him. 
But if he says that is true of which he does not know whether 
it be true or false, and it is actually false, it is the same misrep- 


MARINE INSURANCE. 


384 

resentation as if he knew it to be false. If a statement relate 
to the future, a future compliance or fulfilment is necessary. 

Any statement in reply to a distinct inquiry will be deemed 
material; because the question implies that the insurer deems 
it material. On the other hand, the insured is not bound to 
communicate any mere expectation or hope or fear; but only 
all the facts material to the risk. 

SECTION X. 

WHAT THINGS SHOULD BE COMMUNICATED. 

Not only ascertained facts should be stated by the insured, 
but intelligence, and mere rumors, if of importance to the risk; 
and it has been held that intelligence known to his clerks would 
be generally presumed to be known to him; and it is no defence, 
that the things have been found to be false. It has been held 
that an agent was bound to state that his directions were sent 
him by express; because this indicated an emergency. If the 
voyage proposed would violate a foreign law not generally 
known, this should be stated. 

It is impossible to give any other criterion to determine 
what should be communicated than the rule that everything 
should be stated which might reasonably be considered in 
estimating the risk. And so everything of any kind which the 
insurer might reasonably wish to take into consideration in 
estimating the value of the risk which he is invited to assume. 

The question, however, being one of concealment as it 
affects the estimation of the risk, it is obvious that the insured 
need not state to the insurer things which he already knows; 
and by the same reason, he is not bound to state things which 
the insurer ought to know, and might be supposed to know. 

If either party says to the other so much as should put the 
other upon inquiry in reference to a matter about which inquiry 
is easy and would lead to information, and the other party 
makes no inquiry, his ignorance is his own fault, and he must 
beat the consequences of it. 

An intention, which, if carried into effect, would discharge 
the insurers, as, for example, an intention to deviate, need not 


THE PREMIUM. 


385 

be stated, unless the intention itself can be shown to affect the 
risk. So a past damage to the property need not be stated, 
unless it affects its present probability of safety. 

A false statement that other insurers have taken the risk on 
such or such terms is a misrepresentation; but a false state¬ 
ment by the insured that he thinks they would take it on such 
terms is not one, for of this the insurers can judge for them¬ 
selves. 

Every statement or representation will be construed ration¬ 
ally, and so as to include all just and reasonable inferences. A 
substantial compliance with it will be sufficient; and a literal 
compliance which is not a substantial one will not be sufficient. 

SECTION XI. 

THE PREMIUM. 

This is undoubtedly due when the contract of insurance is 
completed ; but in practice in this country, the premium in 
marine insurance is usually paid by a premium note on time, 
which is given at or soon after the delivery of the policy. If 
the policy acknowledge the receipt of the premium, and it is 
not paid, this receipt would be no bar to an action for it. 

The premium is not due, if the risk is not incurred; whether 
this be caused by the non-sailing of the ship; or by one insured 
on goods not having goods on board; or not so much cargo as 
he is insured for; or by any error or falsity in the description 
which prevents the policy from attaching. 

If the premium be not earned, or not wholly earned, it must 
be returned in whole or in part by the insurers if it have been 
paid; and not charged in account with the insured, if it be 
unpaid. 

The premium may be partially earned ; and then there must 
be a part return only. As if the voyage consist of several 
passages, or of “out and home” passages, and these are not 
connected by the policy as one entire risk; or if the insured 
has some goods at risk, but not all which he intended to insure. 

It is, however, an invariable rule, that if the whole risk 

attaches at all, that is, if there be a time, however short, during 
25 


MARINE INSURANCE. 


3§6 

which the insurers might, in case of loss from a sea-peril, be 
called on for the whole amount they insure, there is to be no 
return of premium. 

In this country, insurers usually retain one-half of one per 
cent, of a returnable policy. And our policies contain a clause 
permitting the insurers to set off the premium due against a 
loss, whether the note be signed by the insured or by another 
person. 

SECTION XII. 

THE DESCRIPTION OF THE PROPERTY INSURED. 

The description must be such as will distinctly identify the 
property insured, as by quantity, marks, and numbers, or a 
reference to the fact of shipment, or the time of shipment, or 
the voyage, or the consignee ; or in some similar and satisfactory 
way; and no mere mistake in a name, or otherwise, vitiates the 
description if it leaves it sufficiently certain. If different ship¬ 
ments come within the policy, the insured may attach it to 
•either by his declaration, which may be done after the loss, pro¬ 
vided this appears to have been the intention of the parties. 
“ Cargo,” “goods on board,” “merchandise,” mean much the 
same thing; and do not attach to ornaments, clothing, or the 
like, owned by persons on board and not intended for commer¬ 
cial purposes. “ Property ” is the word of widest and almost 
unlimited meaning. “Ship” or “vessel” includes all that 
belongs to it at the time,—even sextants or chronometers 
belonging to the ship-owner, and by him appropriated to the 
navigation of the ship. So it includes all additions or repairs 
made during the insurance. 

The phrase “ a return cargo ” will generally apply to a home¬ 
ward cargo of the party insured in the same ship, however it be 
procured; but the phrases “proceeds” and “returns” are 
generally regarded as limited to a return cargo bought by means 
of the outward cargo. And neither of these, or any similar 
phrases, will apply to the same cargo brought back again, unless 
it can be shown, by the usage, or other admissible evidence, 
that this was the intention of the parties. 

The nature of the interest of the insured need not be 


THE PERILS COVERED BY THE POLICY. 


387 

specified, unless peculiar circumstances, closely connecting this 
interest with the risk, make this necessary. But either a mort¬ 
gagor or a mortgagee, a charterer, an assignee, a consignee, a 
trustee, or a carrier, may insure as on his own property, and 
without describing the exact nature of his interest. 

SECTION XIII. 

THE PERILS COVERED BY THE POLICY. 

The policy enumerates, as the causes of loss against which 
it insures, Perils of the Sea, Fire, Piracy, Theft, Barratry, 
Capture, Arrests, and Detentions; and “all other perils,” by 
which is meant, by construction of law, all other perils of a 
like kind with those enumerated. 

It is a universal rule, that the insurers are liable only for 
extraordinary risks. The very meaning of “seaworthiness,” 
which the insured warrants, is that the ship is competent to 
encounter with safety all ordinary perils. If she be lost or 
injured, and the loss evidently arose from an ordinary peril, as 
from common weather, or the common force of the waves, the 
insurers are not liable, because the ship should be able to with¬ 
stand these assaults. And if the loss be unexplained, and no 
extraordinary peril be shown or indicated, this fact would raise 
a very strong presumption of unseaworthiness. As, for 
example, if the vessel went down while sailing with favorable 
winds on a calm ocean. 

It is a universal rule, that the insurers are never liable for a 
loss which is caused by the quality of the thing lost. This rule 
applies to the ship, her rigging and appurtenances, when worn 
out by age or hard service. But its most frequent application 
is to perishable goods. The memorandum already spoken of 
provides for this in some degree. But the insurers are liable 
for the loss of no article of merchandise whatever, if that loss 
were caused by the inherent qualities or tendencies of the 
article, unless these qualities or tendencies were excited to 
action and made destructive by a peril insured against. Thus, 
if hemp rots from spontaneous fermentation, which cannot 
occur if it be dry, the insurers are not liable if the loss arose 


MARINE INSURANCE . 


388 

from the dampness which the hemp had when laden on board; 
but if the vessel were strained by tempest, and her seams 
opened, and the hemp was in this way wet, and then rotted, 
they are liable. 

The insurers may take upon themselves whatever risks they 
choose to assume. And express clauses in a policy, or the 
uniform and established usage and construction of policies, 
may throw upon them, as in fact it does, a very large liability 
to the owner or shipper for the effects of the misconduct— 
wilful or otherwise—of the master and crew. The clause 
relating to barratry, to be spoken of presently, is of this kind. 

If the cargo is damaged through the fault of the master or 
crew, the shipper of the cargo has a remedy against the owner 
of the ship. But this does not necessarily discharge the insur¬ 
ers. If, however, he enforces his claim against them, he is 
bound to transfer to them his claim against the ship-owner. 
For the insurers of the cargo, by paying a loss thereon, put 
themselves, as it were, in the position of the shippers, and 
acquire their rights. 

SECTION XIV. 

PERILS OF THE SEA. 

By this phrase is meant all the perils incident to navigation; 
and especially those arising from the wind and weather, the state 
of the ocean, and its rocks and shores. But it will be remem¬ 
bered that the insurers take upon themselves only so many of 
these as are “extraordinary.” Hence, destruction by worms or 
by rats is not such a peril as the insurers are liable for,*lDecause it 
is not extraordinary. It seems now settled that fire is not in¬ 
cluded among “perils of the sea,” or “perils of the river.” 
But it is usually mentioned in the policy, as one of the risks 
insured against. 

If a vessel be not heard from, it will be supposed, after a 
reasonable interval, that she has perished; but the law has not 
determined the length of this interval with any exactness. The 
presumption of law will be, that she was lost by an extraordinary 
peril of the sea, and, of course, the insurers will be answerable 
for her. But this presumption may be rebutted by any suffi- 


PIRACY ,; ROBBERY ,, OR THEFT. 389 

dent evidence, as of unseraworthiness, or any other probable 
cause of loss. 

SECTION XV. 

COLLISION. 

Collision is a peril of the sea which may deserve especial 
notice. In the chapter on Shipping, it has been stated, that, 
where a collision is caused by the fault of one of the ships, the 
ship in fault sustains the whole loss; that is, it must bear its 
own loss, and must indemnify the other ship for the injury that 
ship sustains. It has been held that the insurers of the ship in 
fault are liable for the whole of this loss, because it is all caused 
by collision, which is a peril of the sea. But the Supreme Court 
of the United States have recently decided that the insurers are 
not held for more than the loss directly sustained by the ship 
they insure, that is, not for the amount that ship pays to the 
other ship for injury done to it. 

SECTION XVI. 

FIRE. 

This peril also must come under the common rule, that the 
insurers will not be held unless it be caused by something 
extraordinary, and not belonging to the inherent qualities of the 
thing which takes fire. 

The insurers would be held for any direct and immediate 
consequences of the fire ; and for loss caused by the endeavor to 
extinguish it. It is, indeed, a general rule, that the insurers are 
liable for the loss or injury which is the natural, direct, and 
proximate effect of any peril insured against, although the loss 
itself may be only the effect of a preceding loss ; as, if a part of 
the cargo was burned up, and another part was injured by water 
used to arrest the fire, the insurers would be liable for both parts. 

SECTION XVII. 

PIRACY, ROBBERY, OR THEFT. 

There can be no piracy or robbery, without violence; but 
this is not necessary to constitute the crime of theft. Piracy 
and robbery are most usually committed by strangers to the 


39 ° 


MARINE INSURANCE. 


ship; they may, however, be committed by the crew; and the 
insurers are answerable for such a loss, unless it arose from the 
fault of the owner. Our policies now usually have the phrase 
“ assailing thieves.” This excludes theft without violence, and 
all theft by those lawfully on board the vessel, as a part of the 
ship’s company. If, after shipwreck, the property is stolen, the 
insurers are liable, and might be so if there were no insurance 
against theft, if this was a direct effect of the wrecking. 

SECTION XVIII. 

BARRATRY. 

This word means any wrongful act of the master, officers, or 
crew, as any fraud, cheat, or trick done by them, or either of 
them, against the owner. If he directed the act, or consented 
to it, or by his negligence or default caused it,—whether he 
were actual owner, or apparent or temporary owner by hiring 
the vessel,—it is no barratry. But it is not necessary that it 
should be done with an intention hostile to him. For an act 
otherwise barratrous would be none the less so because the 
committer of it supposed it would be for the advantage of the 
owner. 

The master being appointed by the owner, and controlled by 
him, many policies provide that they do not insure against bar¬ 
ratry, if the insitred be the owner of the ship. The purpose of 
this is obvious ; it is to prevent an insurance of the owner against 
the acts of one for whom the owner ought to hold himself 
responsible. The effect of the clause is to limit the insurance 
against barratry to goods shipped by one who is not owner of 
the vessel. 

As a general rule, the insurers are liable for the misconduct 
of the crew, when all usual and reasonable precautions have 
been taken by the owner, and his servant, the master, to prevent 
such misconduct. 

SECTION XIX. 

CAPTURE, ARREST, AND DETENTION. 

The phrase which refers to these perils is usually in these 
^vords: “ Against all captures at sea, or arrests, or detentions of all 


PROHIBITED TRADE. 


391 

kings, princes, and people.” Almost every word of this sentence 
has been the subject of litigation or of discussion. The pro¬ 
vision has been held to apply not only to captures, arrests, or 
detentions by public enemies, by foreign belligerent powers, but 
to those by the very government of which the insured is himself 
a subject, unless the same be for a breach of the law by the 
insured. Then the insurers are not liable, because they never 
are for the consequence of an illegal act of the insured. By the 
“ people ” are understood the sovereign power oi a State, what¬ 
ever be its form of government. “ Capture ” and ‘ seizure ” are 
equivalent; they differ from “detention” in this respect: the 
two former words mean a taking with intent to keep ; the latter, 
a taking with intent to restore the property. “ Arrest ” is any 
taking possession of the property for any hostile or judicial 
purpose. 

SECTION XX. 

THE GENERAL CLAUSE. 

This clause has a very limited operation. We have already 
remarked, that it is usually restricted to perils of a like kind 
with those already enumerated; and although this phrase has 
been declared to be substantial and material, it might be difficult 
to hold an insurer liable under this clause, when he would not 
have been liable under some one of the enumerated perils. 

SECTION XXI. 

PROHIBITED TRADE. 

This is not the same with contraband trade (which belong? 
to war), although the words are sometimes used as if they were 
synonymous. It is perfectly lawful for a ship to break through 
a blockade if it can, or to carry arms or munitions of war to a 
belligerent. This would be contraband trade. And it is per 
fectly lawful for the State whose enemy is thus aided, to catch, 
seize, and condemn the vessel that does this, if it can. The 
vessel takes upon itself this risk; and it is not covered by a 
common policy, unless the purpose is disclosed and permitted. 
Prohibited trade belongs to a time of peace. It is either trade 
prohibited by the State to which the ship belongs,—and then it is 


392 


MARINE INSURANCE. 


wholly illegal, and the insurers are not only not answerable under 
a general policy for a loss occasioned by this breach of law, but 
an express bargain to that effect would itself be illegal and void; 
or it may be trade prohibited only by a foreign State. And then 
it is not an illegal act in the vessel by whose sovereign it is not 
prohibited. The intention to incur this extra risk should be 
communicated; because the insurers should be enabled to take 
it into consideration. But in practice, our policies generally, if 
not universally, except expressly the risks arising from prohib¬ 
ited trade. 

The parties may always agree to add such risks, or except 
such, as they choose. 

SECTION XXII. 

DEVIATION. 

As the insurers are entitled to know, either from information 
given them, or from the known course of the trade, what risks 
they assume, it is obvious that the insured have no right to 
change those risks, and that, if they do, the insurers are not 
held to the new risk. Such a change of risk is called a devia¬ 
tion ; it certainly discharges the insurers; and although the 
word originally meant in law what it means commonly, a depart¬ 
ure from the proper course of the voyage, it now means, in the 
law of insurance, any departure from or change of the risks 
insured against. And it discharges the insurers, although it 
does not increase the risk, as they have a right to stand by the 
exact bargain they have made. There may be a deviation while 
the ship is in port; or where the insurance is on time, and no 
voyage is indicated. And a very slight deviation may suffice to 
discharge the underwriters. 

But no deviation discharges the insurers, or, in the language 
of the law, no change or risk is a deviation, unless it be volun¬ 
tary, that is, not if there was or seemed to be a sufficient neces¬ 
sity for it. 

The proper course—a departure from which is a deviation— 
is always the usual course, provided there be a usage ; for a mas¬ 
ter is not bound to follow their track wherever one or two have 
gone before, but must be allowed his own reasonable discretion. 


DEVIATION. 


393 


If there be no course so well established that every one would 
be expected to follow it, the master must go to his destined 
port in the most natural, direct, safe, and advantageous way. 

An extraordinary and unnecessary protraction of a voyage 
would be a deviation. But the mere length of the voyage, with¬ 
out other evidence, would not prove this. 

Liberty policies, so called, are often made. That is, the 
insured is expressly permitted to do certain things, which, with¬ 
out such permission, would constitute a deviation. And a large 
proportion of the cases on the subject of deviation have arisen 
under these policies. Most of the phrases commonly used have 
been construed by the courts ; and generally quite strictly. A 
liberty to “ enter” a port, or “ touch ” at a place, permits a ship 
to go in and come out, but it permits little delay, because for 
delay the word “ stay” or “remain ” is necessary. 

It is certain that no permission is necessary foi any change 
of course or risk that is made for the saving of life, or even for 
the purpose of helping the distressed. Always provided, how¬ 
ever, that the change of course, or the delay, was no greater and 
no longer continued than this cause for it, actually and ration¬ 
ally considered, required. It is, however, equally well settled, 
that a change of course or of risk for the purpose of saving 
property is a deviation not justified by its cause. A delay for 
the purpose of towing a vessel is certainly a deviation, unless 
there are persons on board the vessel which is towed, and they 
can be saved in no other way. 

Sometimes it is intended that a ship shall visit many ports, 
and even go backwards and forwards, at places between the port 
from which she sails and that at which the voyage is finally to 
terminate. Such purposes as this are sometimes provided for 
by a policy on time ; and sometimes by express permission to go 
to and trade at certain ports. 

If permission be given to enter and stop at a dozen differ 
ent ports, the vessel may omit any of them, or the whole, but 
must visit in the proper order all to which she does go. She 
cannot go back and forth. 

The substitution of a new voyage for that agreed upon is of 
course a deviation, and one that can seldom or never be justi- 


394 


MARINE INSURANCE. 


fied by any necessity, so as to carry the insurer’s liability on 
the new voyage. If an entirely new voyage is intended, and a 
vessel sails upon it, but in the same direction in which she would 
have gone on the insured voyages, the policy never attaches, 
and the premium is never earned, because the ship never sails 
on the insured voyage. But if the ship is intended to pursue 
the insured voyage to its proper terminus, but at a certain point 
of the voyage to deviate by going into another port, there is no 
deviation until that point is reached, and the deviation actually 
begun ; because it is certain that no mere intention to deviate 
discharges the insurers until it is carried into execution; and 
they are liable for a loss happening before the deviation. 

SECTION XXIII. 

THE TERMINI OF THE VOYAGE, AND OF THE RISK. 

These must be distinctly stated, whether they be termini of 

time or place. A policy from-to-, or from B to 

-, or from-to B, would be void. Nor would it be 

any better if the termini were named with apparent distinctness, 
but in such wise as to mean nothing, or nothing sufficiently cer¬ 
tain. 

A policy takes effect from its date, if the bargain was then 
complete, although not delivered until afterwards. And it may 
be remarked, that, if there be an unreasonable delay in the sail¬ 
ing of the vessel, the policy never attaches, for the bargain is 
considered as annulled. 

A policy on a vessel “ at ” such a place attaches when she 
is there in safety. But if there were a policy “ to ” a place, and 
another was made out between the same parties “at,” or “at 
and from,” the same place, the law would presume that the par¬ 
ties intended that the second policy should attach whenever the 
first one ceased by the arrival of the ship, without reference to 
the condition of the ship or her peril at the time. 

A policy on goods attaches to them at the time when it 
would have attached to the vessel had she been insured. The 
extent which should be given to the meaning of the word “ port ” 
is sometimes a question of some difficulty ; but in general all 






TERMINI OF THE VOYAGE , AND OF THE RISK. 395 

places are within a port which belong to it by mercantile usage 
and acceptance, although not within the same municipal or legal 
precinct. 

“ At and from ” covers a vessel in a port, as well as after she 
leaves it. “ From ” only covers the vessel after she gets under 
way. “ At and from,” applied to goods, does not cover them in 
the port when they are on shore and warehoused, nor until they 
become subject to marine risk, by being water-borne. They are, 
however, covered, not only when they reach the ship, but as 
soon as they are put on board of boats or lighters, or any other 
usual water conveyance to the ship. And if insured to a port, 
they continue covered after they leave the ship by any usual 
conveyance for the shore, until they are safely landed. The 
word “ at,” applied to an island or a coast, may embrace all the 
ports therein, and cover the ship while sailing from one to 
another. “To a port and a market,” covers a voyage to the 
port, and thence to every place to which, by mercantile usage 
or reasonable construction, a ship may go thence in search of a 
market; and even to return to that port, if honestly with intent 
to learn there where a market could be found. 

If the insurance be to “a port of discharge,” this does not 
terminate if the vessel goes to a port for inquiry, or for needful 
refreshment or repair. If it be “a final port of discharge,” the 
insurance ceases upon such parts of the cargo as are left at one 
port or another, and continues on the ship, and on all the goods 
on board, until arrival at the port where they will be finally dis¬ 
charged. 

It is generally provided in time policies, that, if the vessel be 
at sea at the expiration of the time agreed on, the risk shall con¬ 
tinue until her arrival at a port of discharge, or at her port of 
destination. If then, before the expiration of the time, she is 
actually at sea, or has broken ground for the voyage, or if, when 
the time expires, she is in a port of necessity or restraint, she is 
considered at sea, but not otherwise. 

The English policies and our own contain a provision that 
the insurance continues on the ship “ until she shall be arrived 
and moored twenty-four hours in safety ; ” and on the goods 
until they be “landed,” or “safely landed.” 


MARINE INSURANCE. 


39 ^ 

Under this clause, the ship is insured until moored in safety, 
so far as the perils insured against are concerned, but not 
against the peculiar and local dangers of the port, or the possi¬ 
bility that a tempest there might injure her when moored ; for 
these dangers continue to exist as long as she stays there, and 
the liability of the insurers would never terminate. If she 
enters the harbor, and, before she is moored, is blown off, or 
ordered into quarantine, she is insured until this delay ceases 
and she is safely moored in port. And if before or within the 
twenty-four hours a dangerous storm begins, but does no dam¬ 
age to her until after the expiration of the twenty-four hours, 
the risk has terminated, and the insurers are not liable. 

SECTION XXIV. 

TOTAL LOSS AND ABANDONMENT. 

The law of insurance recognizes an actual total loss, and 
also a constructive total loss. It is actual when the whole prop¬ 
erty passes away, as by submersion or destruction by fire. It 
is a constructive total loss when the ship or goods are partially 
destroyed, and the law permits the insured to abandon the 
salvage or whatever is saved, to the insurers, and claim from 
them a total loss. By “abandonment” is meant, in insurance 
law, the transferring of the property insured, or what is left of 
it, to the insurers. The word is used, because originally the 
insured gave up, renounced, or abandoned the property, saying 
to the insurers, we will have nothing more to do with it, and 
you may do with it what you like. And the word is still always 
used, although now it means a transfer. And in the law of insur¬ 
ance, a constructive total loss is a partial loss made total by an 
exercise of the right of abandonment. That is, the actual loss 
took from the insured a part, and the abandonment took the rest, 
and so they have lost all. A constructive total loss is some¬ 
times called a “technical” total loss. 

The abandonment, we say, transfers all that remains of the 
property to the insurers. If nothing remains, or if that which 
remains has no value, there need be no abandonment, and this 
is an actual total loss. 


TOTAL LOSS AND ABANDONMENT. 


39 7 

The insured never need make an abandonment if he chooses 
not to do so. And if from such choice or neglect he makes 
no abandonment, his claim against the insurers is still valid; 
but it is a different claim from that which it would have been 
if he had abandoned, because it is now to be settled as a par¬ 
tial loss, of which we shall speak hereafter. For it is the 
purpose and effect of an abandonment to convert an actual 
partial loss into a constructive total loss. And if he makes an 
abandonment when he has no right to make it, such aban¬ 
donment is wholly inoperative, unless the insurers choose to 
accept it; but if they accept it, they must settle the loss as a 
total loss. 

The topics in relation to this subject which we will consider 
are :—I. The necessity of abandonment. 2. The right of aban¬ 
donment. 3. The exercise of this right. 4. The acceptance of 
the abandonment. 5. The effect of the abandonment, or of the 
absence of abandonment. 

1. Of the Necessity of Abandonment.— It is said, that if a 
ship be completely wrecked and reduced to “a mere congeries 
of planks and iron,” or if she has not been heard from for a 
sufficiently long time, there need be no abandonment, and the 
insured may claim as for a total loss, without one. In either 
case, or any other case, if the insurers pay a total loss, they are 
entitled to whatever shall come to hand of the property insured. 
And it is usual, and we think more proper, to abandon in both 
of these cases. 

2. Of the Right of Abandonment. —The insured cannot 
convert every partial loss, however small, into a total loss, by 
abandonment, transferring the damaged property to the insurers. 
But by a rule which is nearly universal in this country, and 
not unknown abroad, if the damage by a peril insured against 
exceed one-half of the value of the property insured,— 
whether ship, goods, or freight,—he may abandon the property 
to the insurers, and claim as for a total loss. But if the 
vessel actually reaches her destined port, she cannot be aban¬ 
doned, although the repairs would cost more than half of her 
value. 

When we speak in another section of partial loss, it will be 


MARINE INSURANCE. 


398 

seen that, by the established usage of this country, an allowance 
of “ one-third, new for old,” is always made. This means, that 
if a new thing were given for an old one because the old one 
had been injured, the insurer would be more than indemnified. 
The sails, for example, might be so new that they had lost little 
of their value ; or so old, that they were of no value. To avoid 
inquiring into each case, usage has adopted, as a fair average to 
apply to all cases, that the thing injured has lost one-third of its 
value. When it is replaced by repairs, the insured therefore 
loses one-third of the cost of repair, and the insurers pay two- 
thirds. 

Now our policies provide that there shall be no total loss by 
abandonment unless the injury exceed fifty per cent, when “ esti¬ 
mated as for a partial loss; ” that is, one-third off. Consequently, 
the repairs necessary to restore the vessel to a sound condition 
must amount to more than seventy-five per cent, of her value 
when repaired (one-third of which, twenty-five per cent., being 
cast off, leaves fifty per cent.) before there can be an abandon¬ 
ment, which the insurers are bound to accept, and settle the loss 
as a total loss. 

The valuation in the policy, if there be one, generally 
determines the value on which this estimate is to be made. In 
New York and in Massachusetts, this seems to be distinctly 
held; but the courts of the United States and of some of our 
States, incline to say that, whether the policy be valued or 
open, the value of the ship, the loss of one-half of which 
authorizes abandonment, is the actual value of the ship at the 
time the loss occurs, and that this value is to be proved by 
proper evidence. 

A loss by jettison, by salvage, by general average contribu¬ 
tion, by wages of sailors paid while they assisted in making the 
repairs, should be included in the fifty per cent. If the insured 
have lost a part of his goods by jettison, and have a claim for 
contribution which is not yet paid, the whole of his loss is to be 
included to make up the fifty per cent., and the insurers take 
the claim to contribution by abandonment. Thus, if his loss be 
by jettison of eight-tenths of his goods, it is eighty per cent., 
and if he has a claim for contribution in general average for 


FORM OF ABANDONMENT. 


399 


thirty-five per cent., this does not reduce his loss to forty-five 
per cent., so that he cannot abandon; but he may call his loss 
eighty per cent, and abandon, and by the abandonment transfer 
to the insurers his claim for thirty-five per cent. The expense 
of repairs is to be taken at the place where actually made, or 
where they must have been made, if made at all. 

If a sale be lawfully made by the master, under the authority 
from necessity which we have considered in the chapter on the 
Law of Shipping, this is a total loss, and the insured must 
account for the proceeds. 

3. Of the Exercise of the Right of Abandonment. —As 
an abandonment has the effect of an absolute transfer of the 
property to the insurers, and is intended for this purpose, it is 
obvious that it cannot be made by one who is not possessed of 
such title to the property, or such interest therein, as would 
enable him to make a valid transfer. 

There is no especial form or method of abandonment. But 
the proper and safe way is to do it in writing, and to use the 
word “abandon,” or “abandonment,” although other words of 
entirely equivalent meaning might suffice. It must be distinct 
and unequivocal, and state, at least in a general way, the grounds 
of the abandonment. 

The following would be a good and sufficient form : 

( 101 .) 

Abandonment, 

New York, January 9, 1878, 10 o’clock a. m. 

I have this day learned that my (or the) ship (or whatever the vessel Is), 
insured by you (or of which you have insured the cargo or freight or profits, 
as the case may be), has been wrecked on her voyage from 
to (or has met with such or such a disaster, describing it 

generally ), and that she now lies at (or that said cargo or 

what remains of it is now at ). And I do now and 

hereby abandon to you the ship, with her cargo and freight (or whichever of 
these hiterests was the subject of insurance), and shall claim payment of you 
as for a total loss. 

To the Insurance Company. 

(Signature.) 

If the abandonment be deficient in form, the insurers will 


400 


MARINE INSURANCE. 


waive any objection of this kind if they call for further proof, 
and otherwise act as if the abandonment were altogether 
sufficient. 

The insured may abandon at any time when the ship by a 
peril insured, is taken for an uncertain period from the master’s 
control, and the voyage is broken up and cannot be renewed, 
unless at a cost which of itself gives this right. 

The existence of the right depends upon the actual state of 
facts at the time, and not upon the supposed facts. Nothing, 
however, gives the right of instant abandonment, without a 
faithful endeavor of the master to find, if he can, and use, if he 
can, some means of deliverance and safety. But if, when 
delivered and restored to the master or owner, her damage 
amounts to more than half of her value, estimated as above 
stated, “ as a partial loss,” she may then be abandoned. If the 
precise voyage insured be broken up by a peril insured against, 
this justifies an abandonment, although the vessel might be put 
in condition to pursue a different voyage or render a different 
service. 

As the insurers, who take the salvage (or saved) property 
by abandonment, have a right to every possible opportunity to 
make the most of it, it follows as an invariable and universal 
rule, that the insured must make an abandonment immediately 
after he receives the intelligence which justifies it; and if he 
does not, he will be regarded as having elected not to abandon, 
and no subsequent abandonment will have any effect. 

The abandonment may be made on information of any kind, 
if it be entitled to weight and credence. So even a general 
rumor, without specific intelligence to the insured, will authorize 
an abandonment, if the rumor seems to be well grounded and 
altogether credible. 

4. Of the Acceptance of the Abandonment. —As there 
is no especial form or method of making an abandonment, so 
there is no regular and established form of accepting an aban¬ 
donment. Indeed, an acceptance, merely as such, or in so 
many words, is seldom made. And as the insurer’s accepting 
is not necessary to give full effect to an abandonment which 
has been made on proper grounds, and in the right way and 
time, it is seldom asked for. 


TOTAL LOSS AND ABANDONMENT. 


401 

The acceptance of the abandonment may be inferred from 
words, or acts. The question has arisen whether it could be 
inferred from mere silence; and, in general, it cannot. “An 
insurer is not bound,” says Mr. Justice Story, “to signify his 
acceptance. If he says nothing, and does nothing, the proper 
conclusion is, that he does not mean to accept it.” 

The rule may be stated thus. If the insurer, with a suffi¬ 
cient knowledge of the facts, says or does that which induces 
an honest insured to believe that he has accepted the abandon¬ 
ment, and will pay the loss, and to act on that belief, it is an 
acceptance, and is so far binding on the insurer. But if he 
neither says nor does what ought to produce this belief, then he 
is at liberty to say and prove if he can that the insured had no 
right to make an abandonment, and that the claim is only one 
for a partial loss. 

5. Of the Effect of Abandonment.— We regard it is an 
ancient, reasonable, and well-established rule, that, if insurers 
pay as for a total loss, this payment entitles them to full posses^ 
sion of all that remains of the property insured, and also of all 
rights, claims, or interests which the insured has in or to or in 
respect of the property lost, and which, if he valued or enforced 
them himself, would, if added to the amount paid by the 
insurers, give him a double indemnity. Hence, if the insured 
has lost his goods by jettison, and has a claim for a general 
average contribution, and the insurers pay him for all his goods, 
they stand in his place, and acquire that claim for contribution 
which the loss of the goods gave him. And we should, very 
generally at least, extend this rule to the claim which a mort¬ 
gagee has on the mortgage for his debt. That is, if the insurers 
pay for the loss of the property which secures the debt, they 
acquire, to the extent of their payment, the mortgagee’s claim 
against the debtor. 

By the abandonment, both the owner and the master become, 
to some extent, the trustees and agents of the insurers, in 
respect to the property abandoned; and are bound to act, in 
relation to it, with care and honesty. Still, if the property, 
after abandonment, or after a loss for which there is to be an 
abandonment, be further lost or wasted, by the bad faith or 
26 


402 


MARINE INSURANCE. 


neglect of the master, or of the consignee of the owner, while 
they continue to act as such, this loss must be made up by the 
owner, because, although they are, in a certain sense, agents of 
the insured, they are then agents of the owner, and he is 
responsible for them to the insured 

Goods are totally lost if destroyed, or if so injured as to 
have little or no value for the purpose for which they are 
ntended; or if the voyage upon which the insurance on the 
goods was effected is entirely broken up. But a mere delay 
gives no right of abandonment. And, in addition to all this, 
the rule which permits abandonment if more than fifty per cent, 
be lost, of which we have already spoken, is applicable to goods, 
in this country ; subject, however, to the important qualification, 
that it does not apply if any substantial portion of the goods 
arrive at their destination uninjured; or if the goods are insured 
“free from average.” And the rule of abandonment, salvage, 
and transfer to the insurers, is the same in relation to goods as 
to the ship. 

If there be many several shipments all insured, there may 
be a total loss of one, a partial loss of another, and no loss of a 
third. 

SECTION XXV. 

GENERAL AVERAGE. 

This subject belongs primarily to the law of shipping, and 
is treated of in the chapter on the Law of Shipping. It comes 
within the scope of the law of insurance only when any of the 
property which is lost or saved is insured. 

If an owner of property is insured, and other property is 
sacrificed to save the insured property from a peril common to 
it and to the sacrificed property, the insured property must pay 
such indemnity to the owner of the sacrificed property as will 
make them suffer alike. And the amount thus paid or contribu¬ 
ted by the insured property is a loss by a sea-peril, for which 
the insurers are liable. 

On the one hand, the insurers of the sacrificed property are 
under an obligation to pay for the loss thus made or incurred 
voluntarily, because it was not only the right, but the duty, of 


PARTIAL LOSS. 


403 


the master and crew to destroy a part rather than let the whole 
perish. It was therefore a loss by a peril of the sea, although 
purposely caused for the benefit of others; and the insurers 
must pay for it. 

On the other hand, the owners of the property sacrificed, 
acquire by its sacrifice a claim for contribution and indemnity; 
and if the insurers pay them for their loss, they acquire their 
claim for contribution. And this they take advantage of, in 
some cases, by deducting it from the amount they pay, and in 
other cases by first paying all the loss, and then collecting all 
the contribution for their own benefit. We have already seen 
that the insurers cannot deduct the contribution for the purpose 
of bringing the loss below fifty per cent., and thereby prevent¬ 
ing an abandonment. 

SECTION XXVI. 

PARTIAL LOSS. 

A partial loss is simply a loss of a part, and not of the 
whole. The principal questions relating to it arise out of the 
rule of one-third off, new for old, which has been already 
spoken of. We repeat the rule, with the reason of it. A ship 
sails to-day with new copper. Another sails with her copper 
nearly worn out. Both meet with peril which requires new 
coppering. The first is new coppered, and the insurers pay for 
it, and the insured gains nothing, because the copper on her 
was worth as much as it is now. The second is also coppered, 
and the insurers pay for it. But this ship gains nearly the 
whole value of the copper put on, because the old copper was 
worth very little. Now the whole purpose and principle of the 
law of insurance is to indemnify the insured, or make his loss 
good, and no more. Formerly they tried to do it by finding out 
in each case how much the old materials had lost of their 
value. But this was found so difficult, that it was agreed upon 
by merchants and insurers to average all the cases, and consider 
that all old materials had lost one-third of their value. And 
the rule is found to work well in practice. 

The first effect of this rule is, that the thing or the part lost 
or injured, whether it be new or old, worn out or not worn at 


404 


MARINE INSURANCE. 


all, must be replaced or repaired in adaptation and conformity 
with the vessel, in the same way in which it would be if she 
were properly repaired at the owner’s port, by his orders. 

This third part is generally deducted from dockage, moving 
the ship, and similar expenses, provided they are incidental to 
the main purpose of repair. 

The value of the old materials should be deducted from the 
expense of repair, before the third “new for old” is taken off. 
If a sea-peril makes it necessary to recopper a vessel, and the 
cost will be $9,000, and her* old copper is worth $3,000, we 
should say that this should be deducted, leaving $6,000, for 
two-thirds of which only ($4,000), one-third being off, new for 
old, the insurers would be liable. The other way would be, to 
say the cost of repair is $9,000, of which the insurers would pay 
two-thirds (“ one-third off ”), or $6,000; and then the insurers 
would be entitled to the $3,000 which her old copper brings. 
Then the loss of the insurers would be only $6,000 less $3,000, 
or $3,000, instead of $4,000, which the insurers would lose on 
the first way. Insurers have tried to make the second way the 
law; but the first way is now pretty well established. 

If an owner effects insurance on a part only of the value of 
the property insured,—as if for $5,000 on a ship valued at 
$10,000,—he is insured for half, and is his own insurer for the 
other half, and he recovers in the same proportion from the 
♦ insurers in case of a partial loss. Thus, if there be a partial 
loss of sails and rigging, or of repairs, amounting, after one- 
third is deducted, to $2,000, one-half of this is the loss of the 
insurers, and they pay it to him, and one-half is his own loss. 

The insurer takes no part of the risk of the market, and his 
liability is the same whether that rises or falls, although this 
may make a great difference as to the amount lost by the 
insured. What goods have lost from their original invoice 
value is the amount which the insurer pays. Thus, if he 
insures $10,000 on goods of which that is the original value, 
and they are so far damaged by a sea-peril, that at the port of 
discharge they bring, or are worth, only half of what they would 
have brought if they had not been damaged, the insurers are 
liable for $5,000, or that half, although the goods thus damaged 


USUAL SUBJECT AND FORM OF THIS INSURANCE. 405 

may bring in the market of arrival the whole of their invoice 
cost or more. And if they bring but a quarter of it, the 
insurers pay no more than one-half, because the rest of the loss 
is caused by the falling market. 

If the goods have sustained damage or loss by leakage, or 
by breakage, or by natural decay, or from inherent defect in 
quality,—that is, not by a sea-peril,—before the partial loss occurs, 
a proportional deduction should be made from the partial loss, 
as the insurers are liable only for the injury resulting from that 
loss, and not for any part of that which already existed when 
the loss took place, or which has occurred since from causes 
against which they did not insure. 


CHAPTER XXVII. 

FIRE INSURANCE. 


SECTION I. 

THE USUAL SUBJECT AND FORM OF THIS INSURANCE. 

This kind of insurance is sometimes made to indemnify 
against the loss by fire of ships in port; more often of ware¬ 
houses, and mercantile property stored in them; or of personal 
property in stores or factories, in dwelling-houses or barns, as 
merchandise, furniture, books and plate, or pictures, or live 
stock. But by far the most common application of this mode 
of insurance is to dwelling-houses. 

Like marine insurance, it may be effected by any individual 
who is capable of making a legal contract. In fact, however, 
it is always, or nearly always, in this country, and we suppose 
elsewhere, made by companies. 

There are stock companies, in which certain persons own 
the capital and take all the profits by way of dividends; and 
mutual companies, in which every one who is insured becomes 
thereby a member, and the net profits, or a certain proportion 
of them, are divided among all the members in such manner as 




40 6 


FIRE INSURANCE . 


the charter or by-laws of the company may direct. Sometimes 
both kinds are united, in which case there is a capital stock 
provided, as a permanent guaranty fund, over and above the 
premiums received, and a certain part or proportion of the net 
profits is paid by way of dividend upon this fund, and the 
residue divided among the insured. 

Of late years the number of mutual fire-insurance compa¬ 
nies has greatly increased in this country, and much the largest 
amount of insurance against fire is effected by them. The 
principal reason for this is, undoubtedly, their greater cheap¬ 
ness ; the premiums required by them being, in general, much 
less than in the stock offices. For example, if the insurance 
is effected for seven years, which is a common period, an amount 
or percentage is charged, about the same as that charged by the 
stock companies, or a little more. Only a small part of this is 
taken in cash; for the rest a premium note or bond is given, 
promising to pay whatever part of the amount may be needed 
for losses which shall occur during the period for which the 
note is given. More than this, therefore, the insured cannot 
be bound to pay, and it frequently happens that no assessment 
whatever is demanded; and sometimes, where the company is 
well established and does a large business upon sound princi¬ 
ples, a part of the money paid by him is refunded when the 
insurance expires, or credited to him on the renewal of the 
policy, if such be his wish. 

The disadvantage of these mutual companies is, that the 
premiums paid and premium notes constitute the whole capital 
or fund out of which losses are to be paid for. To make this 
more secure, it is provided by the charter of some companies, 
that they shall have a lien on the land itself on which any 
insured building stands, to the amount of the premium. But 
while this adds very much to the trustworthiness of the 
premium notes, and so to the availability of the capital, it is, 
with some persons, an objection, that their land is thus sub¬ 
jected to a lien or incumbrance. 

There is another point of difference which recommends the 
stock company rather than the mutual company. It is that the 
stock company will generally insure more nearly the full value 


USUAL SUBJECT AND FORM OF THIS INSURANCE . 407 

of the property insured; while the mutual companies are gen¬ 
erally restrained by their charters from insuring more than a 
certain proportion, namely, from one-half to three-fourths of 
the assessed value of the property. It would follow, therefore, 
that one insured by a mutual company cannot be fully indemni¬ 
fied against loss by fire; and may not be quite so certain of 
getting the indemnity he bargains for as if he were insured by 
a stock company. 

The method and operation of fire insurance have become 
quite uniform throughout this country; and any company may 
appeal to the usage of other companies to answer questions 
which have arisen under its own policy ; only, however, within 
certain rules, and under some well-defined restrictions. 

In the first place, usage may be resorted to for the purpose 
of explaining that which needs explanation, but never to con¬ 
tradict that which is clearly expressed in the contract. And 
no usage can be admitted even to explain a contract, unless the 
usage be so well established, and so well known, that it may 
reasonably be supposed that the parties entered into the con¬ 
tract with reference to it. And not only the terms of the con¬ 
tract must be duly regarded, but those of the charter or act of 
incorporation. 

In regard to the execution of a fire policy, and what is 
necessary to constitute such execution, we say that delivery is 
not strictly necessary, and a signed memorandum may be suffi¬ 
cient, or, indeed, an oral bargain only, and that this insurance 
may be effected by correspondence, and that the contract is 
completed when there is a proposition and assent, as we have 
already said in reference to marine insurance. 

It has been held in an action on a fire policy, as doubtless it 
would be on a marine policy, that a memorandum made on the 
application book of the company by the president, and signed 
by him, was not binding, where the party to be insured wished 
the policy to be delayed until a different adjustment of the 
terms could be settled, and after some delay was notified by 
the company to call and settle the business, or the company 
would not be bound, and he did not call; because there was 
here no consummated agreement. So, too, a subsequent adop- 


FIRE INSURANCE . 


408 

tion or ratification of a policy made by an agent is equivalent, 
either in a fire or marine policy, to the making originally of the 
contract. 

SECTION II. 

THE CONSTRUCTION OF POLICIES AGAINST FIRE. 

It is sufficient if the words of the policy describe the persons, 
the location, and the property, with so much distinctness that 
the court and jury have no difficulty in determining their iden¬ 
tity with a certainty which prevents any real and substantial 
doubt. 

In the construction of this as of other contracts, the inten¬ 
tion of the parties is a very important and influential guide; 
but it must be the intention as expressed; for otherwise, a con¬ 
tract which was not made would be substituted for that which 
was made; and evidence from without the contract would be 
permitted to vary and to contradict it. Thus, where stock in 
trade, household furniture, linen, wearing-apparel, and plate were 
insured in a policy, the court held that the term “linen” must 
be confined to “ household linen,” and would not include linen 
drapery goods purchased on speculation. In a case where the 
policy required that the houses, buildings, or other places where 
goods are deposited and kept, shall be truly and accurately 
described, and the place was described as the dwelling-house of 
the insured, whereas he occupied only one room in it, as a 
lodger, this description was held sufficient. 

It was held in another case, that the insurance by an inn¬ 
keeper against fire of his “ interest in the inn and offices,” does 
not cover the loss of profits during the repair of the damaged 
premises. And in another, the words “stock in trade,” when 
used in a policy of insurance in reference to the business of a 
mechanic, as a baker, were held to include not only the materials 
used by him, but the tools, fixtures, and implements necessary 
for the carrying on of his business ; and the words in question 
were held to have a broader application to the business of 
mechanics than to that of merchants. 

A policy upon wearing-apparel, household furniture, and the 
stock of a grocery, covers linen sheets and shirts actually laid in 


CONSTRUCTION OF POLICIES AGAINST FIRE. 409 

for family use, and such as were laid in for sale or traffic in the 
usual way, in the store; but not such as, being smuggled, were 
concealed and intended for secret sale. 

There is no material difference in respect to mistake, or the 
correction of it, between fire-policies and marine-policies; and 
the law on this subject in relation to the latter has already been 
stated. And the same remark may be extended to the rule 
respecting the admission, as a part of the contract, of a memo¬ 
randum on the back of the policy, or attached to it by a wafer, 
and neither referred to in the policy itself, nor signed by the 
insurer. 

It is a general rule with our mutual insurance companies, 
that every one who is insured becomes a member of the com¬ 
pany. 

And it follows, necessarily, that every insured party is bound 
by all the laws and rules of the company, as by laws and rules 
of his own making. 

The mutual fire-insurance companies, by a law or rule which 
is perhaps universal, require that an application shall be made 
in writing; and this written application is after a peculiar form, 
prescribed by the rules. It always contains certain definite 
statements, which relate to those matters which affect the risk 
of fire importantly. In each form of application sundry ques¬ 
tions are put, which are quite numerous and specific, and are 
those which experience has suggested as best calculated to elicit 
all the information needed by the insurers for the purpose of 
estimating accurately the value of the risk they undertake. 
Specific answers must be given to all these questions. And 
this application, with all these statements, questions, and 
answers, is expressly referred to in the policy, and made a part 
of the contract. 

It is common to state in the printed part of the formal appli¬ 
cation, that it is made on such and such conditions; and these 
usually follow those statements which are deemed the most 
material in estimating the risk. These would be considered as 
express conditions, and therefore the substantial truth of all of 
them is a condition precedent to any right of indemnity in the 
insured party. By the legal phrase conditio?i precedent , is meant 


4io 


FIRE INSURANCE. 


a condition which must be fully complied with before the con¬ 
tract can take effect. Hence, if any of these statements are 
false, the policy will be void. 

Sometimes there is no distinct application in writing, but the 
policy itself states the facts relied upon. For this purpose it 
contains many blanks, which are filled up according to the cir¬ 
cumstances of each case. It may happen that what is written 
in these places may be inconsistent with what is printed; and 
then it is a general rule that what is written prevails, as that is 
more immediately and specifically the act of the parties, and 
may be supposed to express their precise purpose better than 
the printed phrases which were prepared without especial refer¬ 
ence to any particular case. But this rule would not be applied 
where it would obviously operate injustice. 

Policies of fire insurance, especially of mutual companies, 
often contain a scale of premiums, as calculated upon different 
classes of buildings, of stocks in trade, or other property, in 
conformity with what is thought to be the greater or less risk of 
fire in each case. This is a matter of special importance; and 
if a statement were made by an applicant which put his building 
or property into a class of which the risk and premium were 
less than for the class to which the building or property actually 
belonged, and in that way an insurance was effected at such less 
premium, the policy would undoubtedly be void, even if the false 
statement were made innocently. 

When certain trades or occupations, or certain uses of build¬ 
ings, or kinds and classes of property, are enumerated as “ hazr- 
ardous,” or otherwise specified as peculiarly exposed to risk, the 
rule, The expression of one thing excludes what is not expressed , 
is applied, and sometimes with severity. This is better illus¬ 
trated by marine insurance. Thus, in a case in New York, 
precisely in point, dried fish were enumerated in the memoran¬ 
dum clause as free from average, and “ all other articles perish¬ 
able in their own nature.” It was held that the naming of one 
description of fish implied that other fish were not intended; 
and that the subsequent words, “ all other articles perishable in 
their own nature,” were not applicable, and did not repel this 
implication. The same rule would be applied, for the same 
reason, and in the same way, to cases of fire insurance. 


CONSTRUCTION OF POLICIES AGAINST FIRE. 411 

If the printed conditions represent one class of buildings, or 
goods, or property, as more hazardous than another, it would not 
be competent for the insured, whose property was of that kind, 
to prove by other testimony that it was not more hazardous in 
fact. Moreover, a description of the property insured, as it is 
a description for a contract on time, is held to amount to an 
agreement that the property shall continue within the class 
where it is put, or at least shall not enter into another that is 
declared to be more hazardous, during the operation of the 
policy. There must, however, be a rational, and perhaps a lib¬ 
eral, construction of this rule. Thus, it does not apply where 
a single article, or one or two, are kept in a store as a part of 
the stock of goods, although that article, as cotton in bales, is 
among those enumerated as hazardous. So if the “storing of 
spirituous liquors ” is prohibited, the keeping of wine or brandy 
in a private house for consumption, or even for sale by retail to 
boarders, would not discharge the insurers. 

In New York it was held that where oils and turpentine, 
which were classed among hazardous or extra-hazardous articles, 
were introduced for the purpose of repairing and painting the 
dwelling insured, and the dwelling was burned while being so 
repaired, the insurers were liable. But if the building is gen¬ 
erally appropriated to a more hazardous occupation than the 
proposals or the policy indicate, or if the jury find that the 
introduction of these goods materially increased the actual risk, 
evidence would be received as to the intention of the parties to 
the contract. And the true meaning of the contract and the 
intent of the parties would be considered. Thus, where the 
“storing” of certain goods was prohibited, as “hazardous,” it 
was held that the having a pipe or two of such articles in the 
cellar, from which smaller vessels in the store were replenished, 
did not come within the meaning of the word “ storing ” in the 
policy, any more than would the keeping of such articles for 
home consumption in a dwelling-house insured by a similar 
policy. So a description of a house as “at present occupied as 
a dwelling-house, but to be hereafter occupied as a tavern, and 
privileged as such,” is only permission that it should be a 
tavern, and creates no obligation to occupy and keep it as » 


412 


FIRE INSURANCE. 


tavern on the part of the insured. But if the language is, “ to 
be occupied as so or so, but not ” in some other certain way, 
this restriction is a part of the bargain ; and, if the building is 
occupied in the way prohibited, the insurers are discharged. 

So if the premises are described as a “ private residence,” the 
insurance is not avoided by the fact that the occupants moved 
out of the house, leaving it vacant, and not the “ residence ” of 
any one, unless the jury find that the risk was thereby materi¬ 
ally increased. But where the property was represented as a 
“ tavern barn,” and the insured permitted its occupation as a 
livery-stable, the policy was held to be discharged, although 
the keeper of the livery-stable was removable at the pleasure of 
the insured. Where a building insured by a company was rep¬ 
resented, at the time of effecting the insurance, as connected 
with another building on one side only, and before the loss 
happened it became connected on two sides, the policy was 
held not to be avoided unless the risk thereby became greater. 

The general subject of alterations of property under insur¬ 
ance against fire is not without difficulty. On the whole, how¬ 
ever, mere alterations, although expensive and important, do not 
necessarily and of themselves avoid the insurance or discharge 
the insurers ; but they have this effect, if they are found by the 
jury to increase the‘ risk materially; or if they are specifically 
prohibited in the policy. 

Still other questions may arise where material alterations are 
made, all of which are not easily disposed of. The following are 
instances. Suppose one gets his dwelling-house insured for 
seven years, truly describing it as having a shingled roof. After 
two or three years he determines to take off the shingles, but 
says nothing to the insurers about it. If he now puts on slates, 
or a metallic covering which does not require soldering, he does 
not increase the risk; nor is the work of putting on the new 
covering hazardous, and we see no grounds for its having any 
effect on the policy. But suppose the new metallic covering is 
secured by soldering. This is certainly a hazardous operation. 
And if the building takes fire in consequence of this operation, 
the insurers are certainly discharged. 

If the operation is conducted safely through, and the work 


CONSTRUCTION OF POLICIES AGAINST FIRE . 


413 


is entirely finished, we consider it clear that this greater hazard 
for a time has no effect whatever on the policy after that time, 
and after all the greater hazard has expired. But let us suppose 
that while this operation is going forward, and the house is 
thereby certainly exposed to an increase of risk, the house is set 
on fire by an incendiary,—without the slightest reference to this 
alteration,—and burns down. It is not, perhaps, settled, either 
by authority or practice, whether the insurers are or are not dis¬ 
charged. I am, however, of opinion that the principles of insur¬ 
ance would lead to the conclusion, that, if the house be burned 
from a perfectly independent cause, during an increase of risk 
incurred for good cause and in good faith, the insurers are not 
thereby discharged. It is, however, certain, that it is always 
prudent to obtain the consent of the insurers to any proposed 
alteration. If such consent be asked, and refused, we do not 
see that the insurers stand on any better footing, or the insured 
on any worse one; and if the alterations are made and a loss 
occurs, we should say that the insurers would not, generally at 
least, be discharged because of their refusal, unless they would 
have been discharged if the alteration had been made without 
their knowledge. For if they have a right to object or refuse, 
it could only be because the contract in effect prohibited this 
alteration; and then their refusal was not wanted for their 
defence. And if they have no right to refuse, they can acquire 
no rights by the refusal. 

If the alteration be of a permanent character, and causes a 
material increase of the danger of fire, then it is a substantial 
breach of contract; and we should hold that the insurers were 
discharged as soon as the alteration was made, and indeed as 
soon as the making of it, or preparations for it, as scaffolding 
or carpenter’s work, materially increased the risk. And they 
are discharged equally, whether the fire be caused by the 
alteration, or by the work done, or by some wholly independent 
matter. 

The insured may make reasonable repairs without especial 
leave, and the insurers are liable, although the fire take place 
while the repairs are going on ; and even if it be caused by the 
repairs. 


414 


FIRE INSURANCE. 


It may be added, that our fire-policies now in use frequently 
give the insured the right of keeping the property in repair. 
The failure of the insured to repair a defect in the building, 
arising after the contract is made, does not prevent the insured 
from recovering unless he was guilty of gross negligence. 

SECTION III. 

THE INTEREST OF THE INSURED. 

Any legal interest is sufficient. And if it be equitable in 
the sense that a court of equity will recognize and protect it, 
that is sufficient; but a merely moral or expectant interest is 
not enough. So one has an insurable interest in a house placed 
on another’s land with that other’s consent, but not if placed 
there without license or shadow of title. So, too, one who has 
made only an oral bargain with another to purchase the other’s 
house, cannot insure it; but if there be a valid contract in law, 
or if by writing or by part performance it is enforceable in a 
court of equity, the purchaser may insure. So, if a debtor 
assign his property to pay his debts, he has an insurable 
interest in it until the debts are paid, or until the property be 
sold. 

A partner may have an insurable interest in a building pur¬ 
chased with partnership funds, although it stands upon land 
owned by the other partner. A mortgagor may insure the whole 
value of his property, even after the possession has passed to 
the mortgagee, if the equity of redemption be not wholly gone. 
So he may if his equity of redemption is seized on execution, or 
even sold, so long as he may still redeem. And in case of loss 
he recovers the whole value of the building, if he be insured on 
it to that amount. 

A mortgagor and a mortgagee may both insure the same 
property, and neither need specify his interest, but simply call 
it his property. The mortgagee has an interest only equal to 
his debt, and founded upon it; and if the debt be paid, the inter* 
est ceases, and the policy is discharged ; and he can recover no 
more than the amount of his debt. 

It has been held, that if a mortgagor is bound by his contract 


THE INTEREST OF THE INSURED . 


415 

with the mortgagee to keep the premises insured for the benefit 
of the mortgagee, and does keep them insured in his own name, 
the mortgagee has an equitable interest in or lien upon the pro¬ 
ceeds of the policy. 

One who holds property only in right of his wife may insure 
the property, even if his wife be only a joint tenant. And a 
tenant for years, or from year to year, may insure his interest, 
but would recover only the value of his interest, and not the 
value of the whole property. 

We have said that, generally, any one having any legal 
interest in property may insure it as his own. But there is one 
important exception to or modification of this rule. By the 
charters of many of our mutual insurance companies, the com¬ 
pany has a lien, to the amount of the premium note, on all prop¬ 
erty insured. It is obvious, therefore, that no such description 
can be given, or no such language used, as would induce the 
company to suppose they had a lien when they could not have 
one, or would in any way deceive them as to the validity or 
value of their lien. In all such cases all incumbrances must 
be stated, and the title or interest of the insured fully stated in 
all those particulars in which it affects the lien. 

A trustee, agent, or consignee may insure against fire, as he 
may against marine loss. Generally, the consignee is not bound 
to insure against fire, but may, at his discretion. He may insure, 
expressly, his own interest in them for advances, or the owner’s 
interest. It has been held that a consignee may, by virtue of 
his implied interest and authority, insure, in his own name, 
goods in his possession against fire , to their full value, and 
recover for the benefit of the owner. And if the interest be not 
expressed, the policy will be construed as not covering the 
interest of the owners, if, upon a fair construction of the words 
and facts, it seems to have been the intention of the parties only 
to secure the consignee’s interest. And an insurance against 
fire upon merchandise in a warehouse, “for account of whom 
it may concern,” protects only such interests as were intended 
to be insured at the time of effecting the insurance. 

It is now common for a commission merchant to cover in 
one policy, in his own name, all the goods of the various owners 


FIRE INSURANCE. 


416 

who have consigned goods to him. It has been held, that the 
words “goods held on commission,” in fire-policies, have an 
effect equivalent to the words “for whom it may concern,” in 
marine-policies. 

A person having a lien on a building under a State law has 
an insurable interest in the building. 

A consignee of goods, sent to him, but not received, may 
insure his own interest in them. So, any bailee (which means 
any person to whom property has been delivered for any pur* 
pose) who has a legal interest in the chattels which he holds, 
although this be temporary and qualified, may insure the goods 
against fire. Thus a common carrier by land, who has alien on 
the goods, and is answerable for them if lost by fire (unless it 
be caused by the act of God or the public enemy), may insure 
the goods to their full value against fire. 

The insurers must know whom they insure, for they may 
have a choice of persons, and it is important to them to know 
whether they are to depend on the care and honesty of this man 
or that man. The insured must so describe the owner as not 
to deceive them on this point, and so he must the kind of owner¬ 
ship. Thus, if he aver an entire interest in himself, he cannot 
support this by showing a joint interest with another ; and if in 
his action he declare the latter, proof of the former is not 
sufficient. 

So, too, there must be actual authority to make the insur¬ 
ance. This may be express, or implied, in some cases, as it 
seems to be implied with the consignee, or the carrier, and per¬ 
haps, generally, with any one who has an actual possession of, 
interest in, and lien on, the property. But a tenant in common 
does not derive from his cotenancy authority to insure for his 
cotenant; nor could a master of a ship or a ship’s husband, 
merely as such, insure the owner’s interest against fire. 

SECTION IV. 

DOUBLE INSURANCE. 

By this, the party originally insured becomes again insured. 
If, by a double insurance, the insured could protect himself over 


WARRANTY AND REPRESENTA TION. 


41 7 


and over again, he might recover many indemnities for one loss. 
This cannot be permitted, not only because it is opposed to the 
first principles of insurance, but because it would tempt to fraud, 
and make it very easy. 

In this country, fire-policies usually contain express and 
exact provisions on this subject. They vary somewhat, but, 
generally, they require that any other insurance must be stated 
by the insured, and indorsed on the policy; and it is a frequent 
condition, that each office shall in that case pay only a ratable 
proportion of a loss ; and it is often added, that, if such other 
insurance be not so stated and indorsed, the insured shall not 
recover on the policy. And it has been held that such a condb 
tion applies to a subsequent as well as to a prior insurance ; or 
to an insurance of any part of the property covered by the other 
policy. Nor will a court of equity relieve, if sufficient notice 
and indorsement have not been made. But it has been held that 
a valid notice might be given to an agent of the company, who 
was authorized to receive applications and survey property pro¬ 
posed for insurance. 

In some instances the charter of the company provides that 
any policy made by it shall be avoided by any double insurance 
of which notice is not given, and to which the consent of the 
company is not obtained, and expressed by their indorsement 
in the policy. But this would not apply to a non-notice by an 
insured of an insurance effected by the seller on the house 
which the insured had bought, if this policy were not assigned to 
the buyer. 

SECTION V. 

WARRANTY AND REPRESENTATION. 

A warranty is a part of the contract; it must be distinctly 
expressed, and written either in or on the policy, or on a paper 
attached to the policy, or, as has been held, on a separate paper 
distinctly referred to and described as a part of the policy. Then 
it operates as a condition precedent; that is, as a condition of the 
policy, which if it be not performed, the policy never takes 
effect; if it be not performed, there is no valid contract; nor 
can the non-performance be helped by evidence that the thing 
27 


4 j8 fire insurance. 

warranted was less material than was supposed, or, indeed, not 
material. 

It may be a warranty of the present time, or, as it is called, 
affirmative, or of the future, and then it is promissory. And it 
may be, although of the present and affirmative, a continuing 
warranty, rendering the policy liable to avoidance by a non¬ 
continuance of the thing which is warranted to exist. Whether 
it is thus continuing or not must evidently be determined by 
the nature of the thing warranted. A warranty that the roof 
of a house is slated, or that there are only so many fire-places 
or stoves, would, generally, at least, be regarded as continu¬ 
ing ; but a warranty that the building was five hundred 
feet from any other building, would not cause the avoidance 
of the policy if a neighbor should afterwards put up a house 
within one hundred feet, without any act or privity of the 
insured. 

We have seen, that statements made on a separate paper 
may be so referred to as to make them a part of the policy. 
And it is usual to refer in this way to the written application 
of the insured, and to all the written statements, descriptions, 
and answers to questions, which he makes for the purpose of 
obtaining insurance. But a fair and rational, or, in some cases, 
a liberal construction, will be given to such statements. 

It is quite certain that the word warranty need not be used, 
if the language is such to import unequivocally the same mean¬ 
ing. And an indorsement made upon the policy before it is 
executed may take effect as a part of it. 

A statement may be introduced into the policy itself, and be 
construed not as any warranty, but merely as a license or per¬ 
mission of the insurers that premises may be occupied in a 
certain way, or some other fact occur without prejudice to the 
insurance. 

A representation, in the law of insurance, differs from a war¬ 
ranty, in that it is not a part of the contract. If made after 
the signing of the policy or the completion of the contract, it 
cannot of course affect it. If made before the contract, and 
with a view to effecting insurance, it is no part of the contract; 
but if it be fraudulent, it makes the contract void. And if it 


WARRANTY AND REPRESENTATION. 


419 

be false, and known to be false by him who makes it, it is his 
fraud. To have this effect, however, it must be material; and 
there is no better test or standard for this than the question, 
whether the contract would have been made, and in its present 
form or on its actual terms, if this statement had not been made 
and believed by the insurers. If the answer is, that the con¬ 
tract would not have been made if this statement had not been 
made, it is material; otherwise, not. The general rule is, that 
the statements in the application on a separate sheet, have the 
effect only of representations, and do not avoid the policy unless 
void in a material point, or unless the policy makes them speci¬ 
ally a part of itself, and gives them the effect of warranties. A 
representation may be more certainly and precisely proved if 
in writing; but it will have its whole force and effect if only 
oral. 

In some instances, by the terms of the policies, any mis¬ 
representations or concealments void the policy. And it is 
held that the parties have a right to make such a bargain, and 
that it is binding upon them ; and the effect of it would seem to 
be to give to representations the force and influence of war¬ 
ranties. 

There seems to be this difference between marine-policies 
and fire-policies. In the former, a material misrepresentation 
avoids the policy, although innocently made ; in the latter it has 
this effect only when it is fraudulent. This distinction seems 
to rest upon the greater capability, and therefore greater obli¬ 
gation, of the insurers against fire to acquaint themselves fully 
with all the particulars which enter into the risk. For they 
may do this either by the survey and examination of an agent, 
or by specific and minute inquiries. If a warranty is broken, 
however innocently, it avoids all policies, whether material or 
not. And this difference between a warranty and a representa • 
tioii is very important. 

Concealment is the converse of misrepresentation. The 
insured is bound to state all that he knows himself, and all that 
it imports the insurer to know, for the purpose of estimating 
accurately the risk he assumes. A suppression of the truth has 
the same effect as an expression of what is false. And the 


FIRE INSURANCE. 


420 

rule as to materiality and as to a substantial compliance is the 
same. 

Even the rumor of an attempt to set fire to a neighboring 
building should be communicated; because the insurer should 
be informed of any unusual fact, or any circumstance relating to 
the building materially enhancing the risk. 

Insurers must be understood as knowing all those matters 
of common information that are as much within their reach as in 
that of the insured; and these need not be especially stated. 
But any special circumstance, as a great number of fires in the 
neighborhood, and the probability or belief that incendiaries 
were at work, should certainly be communicated; and silence 
on such a point—especially if the place of business of the 
insurers was at a considerable distance from the premises— 
would operate as a fraud, and avoid the policy. And any ques¬ 
tions asked must be answered, and all answers must be as full 
and precise as the question requires. If there were a provision 
in the policy that a certain fact, if existing, must be stated, 
silence in reference to it would avoid the policy, however imma¬ 
terial the fact. Concealment in an answer to a specific 
question can seldom or never be justified by showing that it was 
not material. Thus, in general, nothing need be said about 
title. But if it be inquired about, full and accurate answers 
must be made. 

Where the insurance company has, by the terms of the 
policy, a lien upon or interest in the premises insured, to secure 
the premium note, here it is obvious that any concealment of 
incumbrance or defect of title would operate as a fraud, and 
defeat the policy. But in all such cases it is probable that 
specific questions are put respecting the estate and title of the 
insured. 

It is often required that all buildings standing within a cer¬ 
tain distance of the property insured shall be stated; but this 
might not always be considered as applicable to personal and 
movable property. Still, an insurance of chattels, described as 
in a certain place or building, would be held to amount to a 
warranty that they should remain there ; or rather it would not 
cover them if removed into another place or building, unless, by 


THE RISK INCURRED BY THE INSURERS. 


421 


some appropriate phraseology, the parties expressed their inten¬ 
tion that the insured was to be protected as to this property 
wherever it might be situated. It is not uncommon to insure 
goods that are in course of transit, against fire; but then it is 
usual to name the places from which and to which the goods 
are passing. 

SECTION VI. 

THE RISK INCURRED BY THE INSURERS. 

At the time of the insurance, the property must be in 
existence, and not on fire, and not at that moment exposed to 
a dangerous fire in the immediate neighborhood; because the 
insurance assumes that no unusual risk exists at that time. 

The risk taken is that of fire. And therefore the insurers 
are not chargeable if the property be destroyed or injured by 
the indirect effect of excessive heat; or by any effect which 
stops short of ignition or combustion, when this heat is pur¬ 
posely applied, and the injury is caused by the negligence of 
the person in charge of it. Where, however, an extraordinary 
fire occurs, the insurers are clearly liable for the direct effects 
of it, as where furniture or pictures are injured by the heat, 
although they do not actually ignite. 

And they are liable for the injury from water used to extin¬ 
guish the fire; and for injury to or loss of goods caused by their 
removal from immediate danger of fire; but not if removed 
from a mere apprehension from a distant fire, even if it be 
reasonable; and not if the loss or injury might have been 
avoided by even so much care as is usually given in times of 
such excitement and confusion. 

In some instances, the policies require that the insured 
should use all possible diligence to preserve their goods; and 
such a clause would strengthen the claim for injury caused by 
an endeavor to save them by removal. So the insurers are 
liable for injury or loss sustained by the blowing up of build¬ 
ings to arrest the progress of a fire. 

Lightning is not fire; and if property be destroyed by 
lightning, the insurers are not liable, unless there was also 
ignition; or unless the policy expressly insures against light¬ 
ning. 


422 


FIRE INSURANCE. 


An explosion caused by gunpowder is a loss by fire ; not so 
is an explosion caused by steam. 

Whether, when the negligence of the insured or his servants 
is to be considered as the sole or direct cause of the fire or loss, 
the insurers can be held, has been somewhat considered. And 
as this is the most common and universal danger, and the very 
one which induces most persons to insure, there has been some 
disposition to say that no measure or kind of mere negligence 
can operate as a defence. And in effect this is almost the law. 
But if the loss be caused by negligence of the insured himself, 
of so extreme and gross a character that it is hardly possible to 
avoid the conclusion of fraud, the defence might be a good one, 
although there were no direct proof of fraud. That the fire 
was caused by the insanity of the insured should be no defence. 


SECTION VII. 

VALUATION. 

Valuation', precisely as it is understood in a marine policy, 
seldom enters into a fire-policy,—never, perhaps, in a policy 
made by any of those mutual companies who now do a very 
large part of the insurance of this country. And quite seldom 
is a building valued when insured by a stock company. If a 
loss happens, whether it be total or partial, the insurers are 
bound to pay only so much of the sum insured as will indemnify 
the assured. But, as care is always taken—and sometimes 
required by law—not to insure upon any house its whole value, 
it seldom happens, and, if the proper previous precautions are 
taken, should never happen, that any question of value arises 
in a case of a total destruction of a building by fire. 

But mutual companies are usually forbidden by their charter 
to insure more than a certain proportion of the value of a build¬ 
ing ; and this requires a valuation in the policy, which is con¬ 
clusive, for some purposes, against both parties. Of course, the 
insurers can never be held to pay more than the sum insured. 
And if their charter or by-laws permit a company to insure 
only a certain proportion of the value, as three-fourths,—on the 
one hand, if the company insure more than that proportion, as 


ALIENA TION. 


423 

$3,500 on property valued at $4,000, they are held to pay only 
$3,000, and the assured cannot show that the building was 
really worth more than $4,000; and, on the other hand, the 
valuation, if not fraudulent, is conclusive against the insurers 
if the building is destroyed, and they cannot show, in defence, 
that the building was worth less. 

I know nothing to prevent the parties from making a valued 
policy, if they see fit to do so, although this has been questioned. 
It is not uncommon for companies who insure chattels,—as plate, 
pictures, statuary, books, or the like,—to agree on what shall 
be the value in case of loss. 

Sometimes the policy reserves to the insurers the right to 
have the valuation made anew by evidence, in case of loss. 
Then if a jury find a less valuation, the insurers pay the same 
proportion of the new value which they had insured of the 
former valuation. 

The value which the insurers or goods must pay is their 
value at the time of the loss. And it has been held, that 3 
fair sale at auction, with due precaution, will be taken to settle 
that value after the fire, provided the insurers have reasonable 
notice or knowledge that the auction is to take place. 

The valuation determines the amount which the insurers 
must pay only in case of total destruction. If the building is 
only injured by fire, the insurers may either repair it, or pay 
the cost of repairing it. 

SECTION VIII. 

ALIENATION. 

Policies against fire are personal contracts between the 
insured and the insurers, and do not pass to any other party, 
without the express consent of the insurers. 

It is essential to the validity and efficacy of this contract, 
that the insured have an interest in the property when he is 
insured, and also when the loss takes place; for otherwise it is 
not his loss, and he can have no claim for indemnity. If, 
therefore, he alienates the whole of his interest in the property 
before the loss, he has no claim ; and if he alienates a part, 
retaining a partial interest, he has only a partial and propor- 
tionate claim. 


424 


FIRE INSURANCE. 


After a loss has occurred, the right of the insured to indem¬ 
nity is vested and fixed ; and this right may be assigned for 
value, so as to give an equitable claim to the assignee, without 
the consent of the insurers. 

Policies against fire contain a provision that an assignment 
of the property, or of the policy, shall avoid the policy. So, 
generally, it is hardly worth while to inquire what right an 
assignee, without consent, would acquire at common law, or in 
equity, where there is no such provision. 

A dissolution of the partnership before loss, and a division 
of the goods, so that each partner owned distinct portions, was 
held to be in violation of a condition against “any transfer or 
change of title in the property insured.” 

A conveyance by one insured, intended to secure a debt, 
will be treated in a court of equity as a mortgage, and there¬ 
fore it does not terminate the interest of the insured. A 
contract to convey is not an alienation. Nor is a conditional 
sale, where the condition must precede the sale, and is not yet 
performed. Nor is a mortgage, not even after breach, and 
perhaps entry for a breach, and not until foreclosure. Nor 
selling and immediately taking back. Sometimes alienation by 
mortgage is directly prohibited. 

If several estates are insured in one policy, and one or more 
are aliened (or conveyed away), the policy is void as to those 
only which are aliened. If many owners are insured in one 
policy, a transfer by one or more to strangers, without the act 
or concurrence of the other owners, will avoid the policy for 
only so much as is thus transferred. 

In practice, care should be taken to have all such transfers 
regularly made and notified, and the consent of the insurer 
obtained, fully authorized, and duly indorsed or certified, and 
all the rules or usages of the insurers in this respect complied 
with. 

SECTION IX. 

NOTICE AND PROOF. 

Where the policy requires a certificate of the loss, the pro 
duction of it is a condition precedent to any claim for payment 


ADJUSTMENT AND LOSS. 


425 

And it must be such a certificate as is required; but a substan¬ 
tial compliance with its requirements is sufficient. So, too, if 
the notice is to be given forthwith , there must be no unrea¬ 
sonable or unnecessary delay. And all the circumstances of the 
case are considered, in determining whether there was or was 
not due diligence. Where a certificate is required to be 
furnished “ as soon as possible,” it is still sufficient if it be 
furnished within a reasonable time. But where the fire took 
place in November, and the account of loss was not furnished 
till the March following, it was held not to be a compliance 
with the conditions. Generally, this is a question for the jury. 

In fire-policies, as the premises may be supposed always 
open to the inspection of the agents of the insurers, a general 
notice of the fire will be enough. 

SECTION X. 

ADJUSTMENT AND LOSS. 

Insurers against fire are not held to pay for loss of profits, 
gains of business, or other indirect and remote consequences of a 
loss by fire. We do not know, however, why profits may not be 
expressly insured against fire, where it is not forbidden by, or 
inconsistent with, the charter of the insurers. 

There is one wide difference between the principle of adjust¬ 
ment of a marine policy and of a fire-policy. In the former, if 
a proportion only of the value is insured, the insured is con¬ 
sidered as his own insurer for the residue, and only an equal 
proportion of the loss is paid. Thus, if, on a ship valued at 
$10,000, $5,000 be insured, and there is a loss of one-half, the 
insurers pay only one-half of the sum they insure, just as if 
some other insurer had insured the other $5,000. But in a fire- 
policy, the insurers pay in all cases the whole amount which is 
lost by fire, provided only that it does not exceed the amount 
which they insure. 

Most of the fire-policies used in this country give the insurers 
the right of rebuilding or repairing premises destroyed or 
injured by fire, instead of paying the amount of the loss. If, 
under this power, the insurers rebuild the house insured, at a 


FIRE INSURANCE 


426 

less cost than the amount they insure, this does not exhaust 
their liability; they are now insurers of the new building for 
the difference between its cost and the amount they have 
insured. And if the new building burns down, or is injured 
while the policy continues, the insured may claim so much as, 
added to the cost already incurred, shall equal the sum for 
which he was insured. 

It may be important to add, that, under our common mutual 
policies, the insured will also be liable for assessments for losses 
after the destruction of his building by fire, during the whole 
term of the policy. 

There is no rule in fire-insurance similar to that which makes 
a deduction, in marine-insurance, of one-third, new for old. 
Still, the jury, to whom the whole question of damages is given, 
are to inquire into the greater value of a proposed new build¬ 
ing, or of a repaired building, and assess only such damages as 
shall give the insured complete indemnity. . 

Where insurers reserved a right to replace articles destroyed, 
if the insured refused to permit them to examine and inventory 
the goods that they might judge what it was expedient for 
them to do, such conduct on the part of the insured would be 
evidence to the jury of great weight, to prove an overstate¬ 
ment of loss. 

I have not thought it would be useful to give Forms of 
various policies. Applicants never make them, as they are 
always furnished by the insurance companies; each one having 
its own form, and using no other. But the following Forms, of 
immediate notice of loss, of a later and fuller statement under 
oath, with a magistrate’s certificate, and assignments of policies, 
may be found useful. They must be all adapted, in practice, to 
the peculiar circumstances of each case. 

( 102 .) 

To the.Fire-Insurance Company. 

Take Notice, That on the day of inst. (or last) a 

fire broke out in the building No. in Street, in the city of 
{or otherwise describe the location ), whereon I am insured by you, by your 
policy, No. the sum of dollars. I have not yet 

learned and do not know, in what way the fire was caused ; but as soon as I 



FORMS USED IN FIRE INSURANCE. 


4 27 

am able, I will give you further information on the subject. {If the insured 
or his agent knows, or has reasonable cause for supposing, how the fre was 
caught, he should say so, and state what particulars he can.) 

The house was wholly {or partially ) destroyed by fire ; and I shall claim 
a payment from you under your policy. 

Written and sent this day of in the year 

{Signature) {Seal.) 

Witness to the signature and sending. 

{Signature of Witness.) 

Some insurance companies, and, indeed, the express provi¬ 
sions of some policies, require that a sworn statement of the 
facts and circumstances of the loss, and the particulars of the 
claim, be given to the insurance company, with the certificate 
of a magistrate. I do not know that this course might not be 
always prudent. The form in which it is done must vary in 
each case, and be adapted to the peculiarities of that case. But 
the following Form will generally be a safe guide. 

(103.) 

To the.Insurance Company. 

Whereas the said Insurance Company, by their policy numbered 

, and dated on the day of in the year 

caused me to be insured in the sum of dollars against loss or 

damage by fire to the following-described building; that is to say {here 
describe or designate the building sufficiently to show clearly where and what 
it was, taking the description from the policy, but not copying it at lehgtk), 
Now, I, the said {name of the assured) having been solemnly sworn, 

do depose and say,— 

1. That on the day of now last past, between the 

hours of and a fire broke out in said building, whereby the same 
was greatly damaged {or destroyed ), and the said fire was, according to my 
best knowledge and belief, caused by {here set forth the causes so far as they 
are known, or supposed on reasonable grounds), and I aver that the said fire 
was not caused by me, or by my design and occurrence, or with any previous 
knowledge on my part, or in any manner attributable to me or to my agency, 
direct or indirect. 

2. That I was interested in the said property in the following manner: 
that is to say ( here say whether the insured owned the property himself, or 
was a tena?it of it, or a landlord, or 7nortgagor or mortgagee, or trustee , 
or how otherwise he was biterested). 

3. That there was no other insurance against fire of the said property 
{or, if there was any other, state what it was). 



FIRE INSURANCE. 


428 

4 . That the occupants of the building at the time of the fire were, so far 
as is known to me, the following persons (set forth the na?nes of the occu¬ 
pants^ the parts of the building occupied by each 07ie, and the purpose for 
which it was occupied). 

5 . Thdt the actual value of the building in dollars at the time of the 

fire, was, according to my best belief and judgment, dollars. 

{If the property was personal, as goods, furniture, or the like, say, as may 
appear by the schedule annexed.) 

6 . That the whole of said value was lost by the fire ; and being more 

than the sum insured thereon, I now claim of said insurance company said 
sum of dollars. {Or if the building was injured, and not 

destroyed, then say that so much of the value—stating the a?nount—of said 
building was lost by the fire, inasmuch as the building, if repaired, cannot 
be restored to as good condition as before, for a less amou7it than that sum.) 

Witness my hand at this day of 

in the year 

{Signature.) 

{Certificate to be appended to the foregoing.) 

State of 

County of 

I {name of the magistrate) a justice of the peace in and for said 

county {or what else ?nay be his ojfice), dwelling near to the property above 
mentioned, in the town {or city) of have investigated the 

circumstances attending the said fire, and am personally acquainted with the 
said {name of insured ), whose character is good; and I believe that 

the above statement to which the said {name of insured) has made 

oath in my presence is true ; that the loss cannot be imputed to fraud or mis¬ 
conduct on his part; and that he has suffered by the fire a loss of 

dollars. I am not in any way interested in the said property, or in 
the said policy, or any claim under the same. 

In Witness of all of which I have hereunto set my hand and my seal {of 
office, if he has an official seal), at this day of 

in the year 

{Signature of Magistrate.) {Seal.) 

( 104 .) 

Assignment of a Policy to be indorsed Thereon. 

I {na7ne of insured) insured by the within policy, in consideration 

of a dollar paid to me by {na7ne of the assignee) and for other good con¬ 
siderations, do hereby assign, and transfer to the said {na7ne of the 

assignee) this policy, together with all the right, title, interest, and claim which 
I now have or hereafter may have, in, to, or under the same. 



FORMS USED IN FIRE INSURANCE. 


429 


Witness my hand this 
( Witness.) 


day of in the year 

( Signature .) 


It is always best to write this assignment on the policy itself*, 
but it may sometimes happen that this is not convenient or pos¬ 
sible ; the insured who wishes to make the assignment not hav¬ 
ing the policy within his possession or easy reach. Then the 
assured may use the following Form: 

( 105 .) 

Whereas, the Insurance Company, by the policy, numbered 

and dated on day of in the year 

caused me to be insured against loss or damage by fire on a certain building, 
being ( designate the building by location or otherwise ) in the sum of 

dollars ; now, I the said {name.of the insured ), in consideration of 
one dollar paid to me by {name of the assignee ) and for other good consid¬ 
erations, have transferred and assigned, and do by these presents transfer 
and assign unto the said {na7ne of the assignee) the said policy of insurance, 
and all the right, title, interest, or claim, which I now have or ever may have, 
in, to, or under the same, and in and to any sum of money which now is or 
shall ever be payable thereon. 

Witness my hand this day of in the year 

{Signature.) 

{ Witness.) 


If the policy be on goods, or if it be not a fire-policy, but a 
marine-policy, or a life-policy, then the assignment must be 
made to conform to the facts. 

It is always best to get the assent of the insurance company 
to the transfer before it is made. And always the assignment, 
when made, should be exhibited without loss of time, to them or 
to their agent authorized to give their assent, and this assent to 
the assignment be obtained and written upon the policy, or, if 
that cannot conveniently be, on the assignment, and in the 
books of the insurance company. 


430 


LIFE INSURANCE. 


CHAPTER XXVIII. 

LIFE-INSURANCE. 


SECTION I. 

THE PURPOSE AND METHOD OF LIFE-INSURANCE. 

If A insures B a certain sum payable at B’s death to B’s 
representatives, we have only the insurer and insured, as in 
other cases of insurance. But if A insures B a sum payable to 
B or his representatives on the death of C, although C is often 
said to be insured, this is not quite accurate; more properly, B 
is the insured party and C is the life-insured. 

Life-insurance is usually effected in this country in a way 
quite similar to that of fire-insurance by our mutual companies. 
That is, an application must be first made by the insured; and 
to this application queries are annexed by the insurers, which 
inquire, with great minuteness and detail, into everything which 
can affect the probability of life. These must be answered 
fully ; and if the insurer be other than the life-insured, there are 
usually questions for each of them There are also, in some 
cases, questions which should be answered by the physician of 
the life-insured, and others by his friends or relatives; or other 
means are provided to have the evidence of the physician and 
friends. 

These questions are not precisely the same in the forms 
given out by any two companies; and we do not speak of them 
in detail here. The rules as to the obligation of answering them, 
and as to the sufficiency of the answers, must be the same in 
life-insurance that we have already stated in the chapters on 
Fire and Marine Insurance; or rather must rest upon the same 
principles. And the same rules and principles of construction 
therein set forth would doubtless be applied to the question 
whether a contract had been made, or at what time it went into 
effect. 



THE PREMIUM. 


431 


SECTION II. 

THE PREMIUM. 

If the insurance be for one year only, or less, the premium 
is usually paid in money, or by a note, at once. If for more 
than a year, it is usually payable annually. But it is common to 
provide or agree that the annual payment may be made quar¬ 
terly, with interest from the day when the whole is due. Notes 
are usually given ; but if not, the whole amount would be consid¬ 
ered due. If A, whose premium of $100 is payable for 1878 on 
the 1 st day of January, then pays $25, and is to pay the rest quar¬ 
terly, but dies on the 1st of February, the $75 due, with interest 
from the 1st of January, would be deducted from the sum 
insured. If the policy provides that the risk shall “ terminate 
in case the premium charged shall not be paid in advance on or 
before the day at noon on which the same shall become due and 
payable,” and the day of payment falls on Sunday, the premium 
is not payable until Monday, although the assured dies on Sun¬ 
day afternoon. 

Provision is sometimes made that a part of the premium shall 
be paid in money, and a part in notes, which are not called 
in unless needed to pay losses. The greater the accommoda¬ 
tion thus allowed, the more convenient it is, obviously to the 
insured, but the less certain will he be of the ultimate payment 
of the policy, because, in the same degree, the fund for the pay¬ 
ment consists only of such notes, and not of payments actually 
made and invested. There is a great diversity among the life- 
insurance companies in this respect. But even the strictest, or 
those which require that all the premiums shall be paid in money, 
usually provide also that an amount may remain overdue, with¬ 
out prejudice, which does not exceed a certain proportion—say 
one-half or one-third—of the money actually paid in on the policy. 
This is considered, under all ordinary circumstances, safe for 
the company, because every policy is worth as much as this to 
the company. Or, in other words, it would always be profitable 
for the company to obtain a discharge of its obligation on a 
policy, by repaying the insured so small a proportion of what 
has been received from him. 


432 


LIFE INSURANCE. 


Taking a note would certainly be a waiver of immediate pay 
ment, if not itself a payment. 

The premiums, after the first, must be paid on the days on 
which they fall due. If no hour be mentioned, then it is 
believed that the insured would have the whole day, even to 
midnight. It is possible, however, that he might be restricted 
to the usual hours of business, and perhaps even to those in 
which the office of the insurers is open for business. 

Practically, the utmost care is requisite on the part of the 
assured, to pay his premium as soon as it is due; and it is a 
wise precaution to pay it a little before. This is the only 
proper and safe course. But we believe it to be not unusual 
for the insurers to accept the premium if offered them a few 
days after, and continue the policy as if it were paid in season, 
provided no change in the risk has occurred in the mean time. 

And sometimes the rules of the company, and in some States 
the statutes, provide, that, if a policy be defeated by a non-pay¬ 
ment of the premium, the insured does not lose all that he has 
paid; but a certain proportion of the value which the policy 
then had shall be paid to him. 

The time of the death is sometimes very important. If the 
policy be for a definite period, it must be shown that the death 
occurs within it. If there were an insurance on a man’s life for 
a year, and some short time before the expiration of the term 
he received a mortal wound, of which he died one day after the 
year, the insurer would not be liable. And the terms of the 
policy may possibly make it necessary to determine which of 
two persons lived longest; as if a sum were insured on the joint 
lives of two persons, to be paid to the representatives of the 
survivor. 

SECTION III. 

THE RESTRICTIONS AND EXCEPTIONS IN LIFE-POLICIES. 

Our policies usually contain certain restrictions or limita¬ 
tions as to place ; the life-insured (he whose life is insured for his 
own or another’s benefit) not being permitted to go beyond cer¬ 
tain limits, or to certain places. But there is nothing to prevent 
a bargain permitting the life-insured to pass beyond these bounds, 


RESTRICTIONS AND EXCEPTIONS IN LIFE-POLICIES. 433 

either in consideration of new and further payments, or of the 
common premium. 

So certain trades or occupations, as of persons engaged in 
making gunpowder, or of engineers or firemen about steam- 
engines, are considered extra-hazardous, and as therefore pro¬ 
hibited, or requiring an extra premium. 

The exception, however, which has created most discussion, 
is that which makes death by suicide an avoidance of the policy. 
The clause respecting duelling is plain enough ; and no one can 
die in a duel without his own fault. But it is otherwise with 
regard to self-inflicted death. This may be voluntary and wrong* 
ful, or the result of insanity and disease, for which the suffering 
party should not be held responsible. 

The general principles of the law of contracts, and of the law 
of insurance particularly, would lead to the conclusion that 
“death by his own hands,” but without the concurrence of a 
responsible will or mind, would not discharge the insurers, 
without a positive provision to that effect. We should put 
such a death on the same footing with one resulting from a 
mere accident, brought about by the agency, but without the 
intent, of the life-insured. As if poison were sent to him by 
mistake for medicine, and he swallowed it under the same mis¬ 
take. 

Much question has been made, when a man may be believed 
to be dead, simply because nothing is known about him, or has 
been known for a long period. But there is not and cannot 
be any other presumption of law on the subject than that, after 
a certain period of absence and silence, there is a presumption 
of death ; and seven years has been mentioned in England and 
in this country as this period, and even sanctioned by legisla¬ 
tion in New York. But all questions of this kind we regard as 
pure questions of fact. Whichever party rests his case upon 
the death or the life of a certain person, at a certain time, must 
satisfy the jury upon this point by such evidence as may be 
admissible and sufficient. 

28 


434 


LIFE INSURANCE . 


SECTION IV. 

THE INTEREST OF THE INSURED. 

Every one insured in any way must have an interest in the 
subject-matter of the insurance. A person may effect insurance 
on his own life in the name of a creditor, for a sum beyond the 
amount of the debt, the balance to enure to his family, and the 
policy will be valid for the whole amount insured. Any one 
may insure his own life ; but if the insured and the life-insured 
are not the same, that is, if the insured be insured on some other 
life than his own, interest must be shown. 

A father has an insurable interest in the life of his minor 
son. And the general rule is, that any substantial pecuniary 
interest is sufficient, although not strictly legal nor definite. 
This has been held in the case of a sister dependent on a 
brother for support; and the rule would be held to apply not 
only to all relations, but where there was no relationship, if 
there were a positive and real dependence. That is, any one 
may insure a sum on the life of any other person on whom he 
or she really depends for support or for comfort. And gener¬ 
ally, it is said to be enough, if, according to the ordinary course 
of events, pecuniary loss or disadvantage will naturally and 
probably result from the death of the one whose life is insured. 

So an existing debt gives the creditor an insurable interest 
in the life of a debtor. But if the debt be not founded on a legal 
consideration, it does not sustain the policy. And if the debt 
be paid before the death of the debtor, the insurers are dis¬ 
charged. 

SECTION V. 

THE ASSIGNMENT OF A LIFE-POLICY. 

Life-policies are assignable at law, and are very frequently 
assigned in practice. And the assignee of a policy is entitled 
on the death of the party insured, to recover the full sum 
insured without reference to the amount of the consideration 
paid by him for the assignment. A large proportion of the 
policies which are effected are made for the purpose of assign¬ 
ment ; that is, for the purpose of enabling the insured to give 


WARRANTY, REPRESENTATION\ ETC. 


435 


this additional security to his creditor. If the rules of the com¬ 
pany or the terms of the policy refer to an assignment of it, they 
are binding on the parties. On the one hand, an assignment 
would operate as a discharge of the insurers, provided a rule or 
expressed provision gave this effect to the assignment. And, 
on the other, if the agreement were that the policy should con¬ 
tinue in favor of the assignee, even after an act which discharged 
it as to the insured himself,—as, for example, his suicide,—the 
insurers would be bound by it. 

It is an important question what constitutes an assignment. 
The general answer must be, any act distinctly importing an 
assignment. And, therefore, a delivery and deposit of the pol¬ 
icy, for the purpose of assignment, will operate as such, without 
a formal written assignment. So will any transaction which 
gives to a creditor of the insured a right to payment out of the 
insurance. 

It seems, however, that delivery is necessary. And where 
an assignment was indorsed on the policy, and notice given to 
the insurer, but the policy remained in the possession of the 
insured, it was held that there was no assignment. Where, 
however, the assignment is by a separate deed, which is duly 
executed and delivered, this is an assignment of the policy, 
without actual delivery of the policy itself. 

SECTION VI. 

WARRANTY, REPRESENTATION, AND CONCEALMENT. 

The general principles on this subject are the same which 
we have already stated in reference to other modes of insurance. 
In life-policies, however, the questions which must be answered 
are so minute, and cover so much ground, that difficulty seldom 
arises except in relation to the answers. One advisable precau¬ 
tion is for the answerer to discriminate carefully between what 
he knows and what he believes. If he says simply “yes” or 
“ no,” or gives an equivalent answer, this is in most cases a 
strict warranty, and avoids the policy if there be any material 
mistake in the reply. But where the answerer adds the words 
“ to the best of my knowledge and belief,” he zvarrants only the 


/l/FE insurance. 


436 

fact of his belief, or, in other words, nothing but his own entire 
honesty. 

The cases which turn upon the answers to the questions are 
very numerous; but they necessarily rest upon the especial 
facts of each case, and hardly permit that general rules should 
be drawn from them. Some, however, may be stated. 

The first is, that perfect good faith should be observed. The 
want of it taints a policy at once, and the presence of it goes far 
to protect one. Thus, where the life-insured was beginning to 
be insane, but was wholly unconscious of it, the policy was not 
vitiated by the concealment, although two doctors in attendance 
upon him knew how the case stood. 

Most of the policies of the present day provide that the 
policy is made on the faith of the statements in the applica¬ 
tion for insurance with the stipulation, and that, if they shall 
be found in any respect untrue, the policies shall be avoided. 
Then the stipulations are considered as warranties, and if untrue, 
even in a point immaterial to the risk, avoid the policies. 

There is a warranty, or statement, usually making a part of 
nearly all life-policies ; it is that the life insured is in good 
health. But this does not mean perfect health, or freedom 
from all symptoms or seeds of disease. It means reasonably 
good health, and loose as this definition, or rule, may be, it 
would be difficult to give it any other. And if a jury on the 
whole are satisfied that the constitution of one warranted to be 
“ in good health ” is radically impaired, and the life made unusu¬ 
ally precarious, there is a breach of the warranty, although no 
specific disease is shown which must have that effect. On the 
other hand, this warranty is not broken by the presence of a dis¬ 
ease, if that be one which does not usually tend to shorten life 
(in one English case dyspepsia was said to be such a disease), 
unless it were organic, or had increased to that extreme degree 
as to be of itself dangerous. 

Consumption is the disease which is most feared in this 
country, as well as in England. And the questions which relate 
to the symptoms of it, as spitting of blood, cough, and the like, are 
exceedingly minute. But here also there must be a reasonable 
construction of the answers. Thus, if spitting of blood be posi- 


WARRANTY, REPRESENTATION , ETC. 437 

tively denied, there may be no falsification in fact, though liter¬ 
ally speaking the life-insured may have spit blood many times, 
as when a tooth was drawn, or from some accident. If there 
be an action on the policy, and the insurers rest their defence 
on any falsification of this kind, the question usually put to the 
jury is, Was the party affected by any of these or similar symp¬ 
toms, in such wise that they indicated a disorder tending to 
shorten life ? And any symptom of this kind, however slight,— 
as a drop or two of blood having ever flowed from inflamed or 
congested lungs,—should be stated. Statements materially 
untrue on these points avoid the policy, although the insured, 
at the time of his application, did not believe that he had any 
pulmonary disease, and the statement made by him was not 
intentionally false, but, according to his belief, true. 

The insurers always ask who is the physician of the life- 
insured that they may make inquiries of him if they see fit. 
And his name must be stated fully and accurately. It is not 
enough to give the name of the usual attendant; but every 
physician really consulted should be named, and every one con¬ 
sulted as a physician, although he is an irregular practitioner or 
quack. 

If the warranty be that the life-insured is a person of sober 
and temperate habits, it has been held, in an action on such a 
policy, that the jury are not to inquire whether his habits of 
drinking are such as might injure his health; for if he has any 
“habits of drinking,” this would discharge the insurers, because 
they have a perfect right to say that they will insure only those 
who are temperate. But it may be answered, that although the 
insurers have this right, and there may be good reasons why this 
should be the general practice, yet unless they use the word 
“abstinence,” or something equivalent, they have no right to 
say that any one is not “temperate” who does not drink enough 
to affect his health; for as, generally, all intemperance must 
affect health injuriously, if there be no such injury, the presump¬ 
tion would be that there was no intemperance ; and there is 
clearly a broad distinction between temperance and total absti¬ 
nence. 

An answer, “not subject to fits,” is not necessarily falsi* 


LIFE INSURANCE. 


438 

fied by the fact that the life-insured has had one or more fits. 
But if the question had been, “ Have you ever had fits ? ” then 
it is said that any fit of any kind, and however long before, 
must be stated. But if a man had a fit when a young child, 
and forgot to mention it, or considered it wholly unimportant, 
and it had nothing to do with his state of health, it would hardly 
be held a falsification which would avoid the policy. 

As there is always a general question as to any facts affect¬ 
ing health not particularly inquired of, a concealment of such a 
fact goes to a jury, who are to judge whether the fact was mate¬ 
rial, and whether the concealment were honest. As when a life- 
insured was a prisoner for debt, and so without the benefit of 
air and recreation, and this was not told; and where a woman 
whose life was insured had become the mother of a child under 
disgraceful circumstances some years before, and this fact was 
concealed, the plaintiff was non-suited. 

If the policy, and the papers annexed or connected, put no 
limits on the location of the life-insured, he may go where he 
will. But if, when applying for insurance, he intends going to 
a place of peculiar danger, and this intention is wholly withheld, 
it would be a fraudulent concealment. 

If facts be erroneously but honestly misrepresented, and the 
insurers, when making the policy, knew the truth, the error does 
not affect the policy. Nor does the non-statement of a fact 
which diminishes the risk. 

If upon a proposal for a life insurance, and an agreement 
thereon, a policy be drawn up by the insurers and presented to 
the insured and accepted by them, which differs from the terms 
of the agreement, and varies the rights of the parties concerned, 
equity will interfere and deal with the case on the footing of 
this agreement, and not of the policy. But it may be shown by 
evidence and circumstances, that it was intended by the insurers 
to vary the agreement, and propose a different policy to the 
insured, and that this was understood by the insured, and the 
policy so accepted. 


INSURANCE AGAINST ACCIDENT, ETC. 


439 


SECTION VII. 

INSURANCE AGAINST ACCIDENT, DISEASE, AND DISHONESTY OF SERVANTS. 

Of late years both of these forms of insurance have come 
into practice, but not so long or so extensively as to require 
that we should speak of them at length. In general, it must 
be true, that the principles already stated as those of insur¬ 
ance against marine peril, or fire, or death, must apply to 
these other—and, indeed, to all other—forms of insurance, 
excepting so far as they may be qualified by the nature of the 
contract. 

From one interesting case which has occurred in England, 
it seems that, when an application is made for insurance, or 
guaranty against the fraud or misconduct of an agent, questions 
are proposed, as we should expect, which are calculated to call 
forth all the various facts illustrative of the character of the 
agent, and all which could assist in estimating the probability 
of his fidelity and discretion. But a declaration of the appli¬ 
cant as to the course or conduct he was to pursue was distin¬ 
guished from a warranty. He may recover on the policy, 
although he changes his course, provided the declaration was 
honest when made, and the change of conduct was also in good 
faith. In this case the application was for insurance of the 
fidelity of the secretary of an institution. There was a ques¬ 
tion as to when, and how often, the accounts of the secretary 
would be balanced and closed ; and the applicant answered that 
these accounts would be examined by the financial committee 
once a fortnight. A loss ensued from the dishonesty of the 
secretary, and it appeared to have been made possible by the 
neglect of the committee or the directors to examine his accounts 
in the manner stated in the policy. But the insurers were held 
on the ground that there was no warranty. 


440 


DEEDS CONVEYING LAND. 


CHAPTER XXIX. 

DEEDS CONVEYING LAND. 


SECTION I. 

WHAT IS ESSENTIAL TO SUCH DEEDS. 

By the old law, no instrument was considered made until it 
was sealed; then it was thought to be done, and the word deed, 
which literally means only something done, was given to every 
written instrument to which a seal was affixed ; and that is the 
legal meaning now. But the common meaning of the word is 
an instrument for the sale of lands; and it is of this that we 
would now treat. 

By the statutes and usage of this country generally, no 
lands can be transferred excepting by a deed, which is signed, 
sealed, acknowledged, delivered, and recorded. In some States 
seals are abolished. 

We give annexed to this chapter an Abstract of the Laws 
of all the States relating to deeds and their requirements. 

What the deed should be, that is, in what words it should 
be expressed, we can best show by the forms appended to this 
chapter, and do not propose to say more about it than this. It 
is not safe to depart from forms, and established phrases, which 
have passed before the courts so often that their exact meaning 
is certainly known. There are things which seem to be and 
perhaps are vain repetitions; and for the usual words it may be 
thought that others of the same or better meaning may be sub¬ 
stituted. Such changes may be made perhaps, without detri¬ 
ment ; but perhaps, also, with ruinous results ; and it is not 
wise to run the risk. 

It should be signed; and this means, properly, that the 
seller or grantor should write his name in the usual way, in the 
proper place, and with ink. If the grantor cannot write his 
name, he may merely make his mark. It has been said that 
writing with a lead pencil is enough, but it would not be safe 
to trust to it. The name of the grantee should be distinctly 



i 


WHA T IS ESSENTIAL TO SUCH DEEDS. 44l 

written in the proper place, in ink. Sometimes, in our large 
cities, an agent buys land for a principal who does not wish to 
be known, and the agent’s name is inserted as grantee, in pencil ’ 
and the deed is so executed and acknowledged and delivered; 
and some time afterwards the agent rubs his name out, and 
writes the name of his principal, the actual buyer, instead. 
But this is a very unsafe and reprehensible practice, and the 
deed cannot be considered satisfactory. 

The deed of a corporation must be signed by an agent or 
attorney, who should be careful to execute it in the manner 
indicated in some of the forms appended. In one case, in 
Massachusetts, where a deed was written throughout as the 
deed of a corporation, and their treasurer signed it thus : “ In 
witness whereof, I, the said C C, in behalf of the said company, 
and as their treasurer, have hereunto set my hand and seal ,”— 
it was held that this was the deed of the treasurer, and not the 
deed of the corporation, and did not transfer the lands. This 
is an extreme case, and the law might not always be applied 
with so much severity; but it is best not to incur any such risk. 
So, to, the rule that a person who is to be authorized to affix 
the seal of another should be authorized under the seal of the 
principal, is so general, that, although it has important excep¬ 
tions, it should always be observed. 

The seal is properly a piece of paper wafered on, or sealing 
wax pressed on. In the New England States generally, and in 
New York, nothing else satisfies the legal requirement of a 
seal. In the Southern and Western States generally, a scrawl, 
intended for a seal, usually made by writing the word “seal” 
within a square or diamond, is regarded in law as a seal. If 
there be but one seal on an instrument, and many parties, all 
of whom should seal it, this seal will be taken generally for the 
seal of each one ; although, properly, each signer should put a 
seal against his own name. 

The deed should be delivered. If a man makes a deed, and 
acknowledges it, and keeps it in his possession, and dies, the 
deed has no effect whatever ; no more than if the grantor had 
put it in the fire. Even where it was recorded, and t v en taken 
back by the grantor and kept by him, with words going to show 


442 


DEEDS CONVEYING LAND. 


that the grantor did not wish the grantee to know of it, it was 
held not to have been delivered. But there are no especial 
words or form necessary for delivery. If the deed, in any way 
whatever, gets into the possession of the grantee, with the 
knowledge and consent of the grantor, it is a delivery. 

The grantor may deliver it by his agent, and it may be 
delivered to the agent of the grantee, authorized by him to 
receive it. Moreover, the law permits a kind of conditional 
delivery. Thus, the grantor may deliver the deed to a third 
person, to be delivered by him to the grantee on a certain con¬ 
dition, or when a certain thing is done ; and when that condition 
is performed, or the thing is done, the deed belongs to the 
grantee, and takes effect in the same way as if it had been 
delivered to him personally. In legal language, the deed is 
said to be delivered to the third person, as an escrow. 

So the grantor may put the deed in the hands of the third 
person, with directions to give it to the grantee after the death 
of the grantor, provided the grantor does not reclaim it in the 
mean time. Then the grantor can reclaim it whenever he will, 
which he cannot do after he has delivered it to the grantee; 
but if he does not reclaim it during his life, at his death it 
becomes the property of the grantee, and the law now considers 
that it was delivered to him when first delivered to that third 
party. So that deed is good even against creditors, provided that 
the grantor was perfectly solvent when he put the deed in the 
hands of the third party, and acted altogether in good faith. 

If a deed to a married woman be delivered either to her or 
to her husband, it is sufficient. 

As there must be delivery to the grantee, or to some one 
for him, so there must be assent and acceptance on his part. 
The law will help any evidence tending to show such assent, by 
presuming in favor of the grantee’s assent if the deed be wholly 
and only favorable to him. But not if there is money to be 
paid by him, or anything important to be done if he accept the 
deed. 

It is usual and proper that the execution of the deed should 
be attested by witnesses. In many of our States, two witnesses 
are required by statute. In New York, one is enough. In the 


WHAT IS ESSENTIAL TO SUCH DEEDS. 


443 


greater number, witnesses are not absolutely required by 
statutes, nor by strict law of any kind; but even there it is 
usual and safer to have them. 

The witness should see the party sign; but if the deed is 
signed near him, and is immediately brought to him by the 
grantor, who tells him that is his signature, and asks him to 
witness, this would be sufficient in law. 

It is desirable that witnesses, when called on to testify, 
should remember the signature, sealing, etc.; but it is sufficient 
in law that they are certain of their handwriting, and can 
declare under oath that they should not have attested the execu¬ 
tion and delivery if they had not seen it. If witnesses are 
dead, proof of their handwriting is sufficient; and if this cannot 
tje offered, then proof of the handwriting of the grantor is 
enough. If witnesses attest the signing, sealing, and delivery, 
in the common form, proof of their handwriting, in case of 
their death or absence, is proof of the execution and delivery 
of the deed. 

The witness should, properly, be of sufficient age and under¬ 
standing, but may be a minor. He should have no interest in 
the deed. Hence a wife is not a proper witness of a deed to 
her husband. But the courts, and especially a court of equity, 
would seldom permit a deed to be avoided through the incompe¬ 
tence of a witness, if there were no suspicion of wrong. 

Generally a deed is valid as between the parties, although 
not acknowledged; but, to entitle it to be recorded, it must be 
acknowledged. For this purpose the grantor must go before a 
person qualified by law to receive acknowledgments, and exhibit 
the deed to him, and acknowledge it as his free act and deed; 
and the person receiving the acknowledgment then certifies that 
he has received this acknowledgment, under the proper date. 

In general an acknowledgment may be made before any 
justice of the peace, or a commissioner appointed for the State 
in which the land to be conveyed is situated, if the deed is 
executed in another State, or any consul or consular agent of 
the United States if the deed is executed in a foreign country. 
This acknowledgment must be made, or the deed cannot be 
recorded. And the deed is invalid, as notice, if the acknowl¬ 
edgment is defective, although it is actually recorded. 


444 


DEEDS CONVEYING LAND. 


Formerly, all the grantors acknowledged the deed; and this 
continues to be usual in most places, and is the safest practice. 
But, in some places, it is now sufficient in law, if either of the 
grantors acknowledge it. 

In many States, if a wife, separately or joining with her 
husband, conveys away her land, a particular form and mode of 
acknowledgment is required, in order to ascertain that she does 
it of her own free will; and any such directions or requirements 
should be followed with great care. The Forms added to this 
chapter will show how this is done. 

An attorney, A B, who executes a deed for another, C D, 
should acknowledge it as “ the free act and deed of the said 
C D,” and not as his own. 

The justice taking the acknowledgment must be careful to 
state it in his certificate, exactly as it was made before him. 

In some of our States, recent laws have in effect required 
the assent of the wife to a transfer of the husband’s real estate; 
not merely to convey her dower, but to pass the property to the 
grantee. We do not enumerate or specify these States here; 
having given previously an abstract of the law of husband and 
wife in all the States. 

In all our States, we have the excellent system of registering 
(or recording, as it is more frequently called) all deeds of land 
in the public registers of the county in which the land lies. 
This was adopted for the purpose of giving certainty and noto¬ 
riety to title, and it works admirably well. The investigation 
of title is usually easy to those accustomed to this mode; and 
every purchaser of land should ascertain that the deed will give 
him good title before he takes it. 

The law generally requires that a deed of lands should be 
acknowledged and recorded, to have full effect; but judicial 
decisions have everywhere qualified the force of these words, 
and in some instances the language of the statutes varies. But 
the rules of law in reference to the recording are quite uniform 
in all the States, and are as follows: 

In the first place, every acknowledged deed is considered as 
recorded as soon as it is in the hands of the recording officer; 
and therefore he generally minutes upon it the day, hour, and 


THE USUAL CLAUSES IN DEEDS. 


445 

minute when it was received by him. This may be very import¬ 
ant ; for if A makes his deed and delivers it to B, who presents 
it for record at five minutes past noon, and C, a creditor of A, 
attaches the same estate at four minutes past noon of the same 
day, the grantee loses the land and the creditor gets it; but the 
grantee saves it, if he presents it to the office three minutes and 
fifty seconds after noon. 

In the next place, as the purpose of public registration is 
general notoriety, a deed is perfectly good without record against 
the grantor himself and his heirs, because the grantor himself 
could not but know of the deed, and, as all title passed out of 
him by it, his heirs could take none from him. 

And finally, a deed not recorded is just as good as if it had 
been recorded, against any parties, or the heirs of any parties, 
who took the land from the grantor by a subsequent deed, even 
for a full price, if they had at the time notice or knowledge of 
the prior and unrecorded deed. Many wise persons have 
doubted the expediency of this last rule, because it tends to 
raise troublesome questions, and to make grantees careless 
about recording their deeds. But the rule itself is universally 
and firmly established, and in some statutes requiring record 
this exception is expressed. 

A deed should be dated; but, if it have no date, it will take 
effect from delivery. Any erasures or alterations should be 
noticed and stated above the names of the witnesses, as having 
been made before the execution of the instrument. Any mate¬ 
rial alteration by a grantee, or by his procurement, makes the 
deed void in most cases, so far as he is concerned. 

It is usual, and therefore proper, to name executors, admin¬ 
istrators, etc., as in the forms appended; but, generally, the 
rights and obligations of the deceased fall by law on their legal 
representatives. 

SECTION II. 

THE USUAL CLAUSES IN DEEDS. 

It is customary to recite in all deeds the consideration on 
which they are made. This is usually the price paid for them. 
Sometimes it is this price in part, and other things in part. 


DEEDS CONVEYING LAND . 


446 

Sometimes there is no price paid, the land being either a gift, 
or conveyed for other considerations. In the great majority of 
deeds, the language used is, “in consideration of (so much 
money) paid me by the said (grantee), the receipt whereof I 
acknowledge.” Or it is, “in consideration of one dollar paid 
me, the receipt of which I acknowledge, and divers other con¬ 
siderations; ” or, “in consideration of one dollar to me paid, 
the receipt of which I acknowledge, and of the love and good¬ 
will I bear to the said (grantee).” It is always customary, 
although not necessary, to put in “one dollar,” or some other 
nominal sum, although no price is paid. 

Although the price is inserted, and the receipt thereof be 
acknowledged, the seller is not bound by his receipt. It is a 
general rule, as has been stated, that all written receipts of 
money are open to evidence, as written contracts generally are 
not. Under this rule, the seller may sue for the whole or any 
part of the money of which he has acknowledged the receipt, if 
he can prove that the money he demands has not been paid to 
him. He cannot, however, say that the money has not been 
paid, and therefore the deed is void , and the land has not passed 
to the grantee. For only that part of the deed which is a receipt 
is open to denial or evidence. 

Of the words of conveyance, which are usually “ give, grant, 
sell, and convey,” it needs only be said, that it is best to use 
them, because it is usual, but that other words, or these with 
some change, would be sufficient in law. 

The description of the land should be minute and accurate, 
to an extreme degree. In this country, it is customary and well 
to refer to the previous deeds by which the grantor obtained his 
title. This is done by describing them by their parties, date, 
and book and page of registry. It may be well to remark, that 
a deed referred to in a deed becomes, for most purposes in law, 
a part of the deed referring. 

By the law of England and of America, if land is conveyed by 
deed to “A B,” the grantee takes it for his life only. Nor will 
he take it in full property (or, to use the technical law-term, in 
fee simple), that is, with full power of disposing of it during his 
life or at his death, with a right on the part of his heirs to it if 


THE USUAL CLA USES IN DEEDS. 


447 


he does not dispose of it, unless it is given to “AB and his 
heirs.” These last words, which are commonly called words of 
inheritance, must always be added ; for although there are some 
qualifications to this rule, which might help those who take such 
a deed inadvertently, there are none to which it would be safe to 
trust. 

The deed is terminated by this clause of execution : “ In 

witness whereof, I, the said A B, on the-day of-in the 

year-, have hereunto set my hand and seal,” or “ subscribed 

(or written) my name and affixed my seal.” And there should 
be no departure from this, although an exact adherence to this 
formula may not be necessary to the validity of the deed. This 
clause is often called the “In Testimonium clause.” 

If the deed contains nothing but what has now been said, it 
will convey the land, or all the right, title, and interest in and 
to the land, possessed by the grantor. But it is only what is 
called a quitclaim deed. That is, it is not a warranty deed. 
These phrases, which are in common use, explain themselves. 
Originally, a quitclaim deed was intended, and indeed operated, 
only where the grantee already held possession of the land, or 
some title to it, and the grantor intended to renounce all his 
right or title in favor of the grantee. But it was soon used 
where a man intended to sell and convey land, but not to give 
any warranty. And now, because there is some question, in 
some of our States, as to the effect of the words “give, grant, 
sell, and convey,” although there be no express warranty in the 
deed, it is best, and it is usual, when only a quitclaim is intended, 
without any warranty whatever, to substitute for the words of 
conveyance above mentioned the words “ grant and quitclaim,” 
or, more accurately, “release and quitclaim.” Then, if the 
grantee afterwards loses the land because the grantor had no 
title to it, the grantor is nevertheless under no responsibility, 
provided the transaction was an honest one on his part. 

All purchasers, therefore, desire to have a warranty deed if 
they can get one. And a deed becomes a warranty deed, when 
clauses like those which follow are inserted just before the clause 
of execution : 

“ And I, the said A B (the grantor), for myself, my heirs. 





DEEDS CONVEYING LAND. 


448 

executors, and administrators, do covenant with the said C D 
(the grantee), his heirs and assigns, that I am lawfully seized in 
fee of the aforegranted premises; that they are free from all 
incumbrances; that I have good right to sell and convey the 
same to the said C D as aforesaid ; and that I will, and my heirs, 
executors, and administrators shall, warrant and defend the 
same to the said C D, his heirs and assigns forever, against the 
lawful claims and demands of all persons. 

It will be noticed that this paragraph contains four different 
agreements or warranties,—covenants the law calls them. The 
cases are multitudinous, and the law excessively nice, as to 
their exact meaning and operation. None of this technical 
learning is it worth while to spread before the general reader. 
But the general purpose and effect of all of them together 
should be stated. It is, that if “the said C D,” that is, the 
grantee, or his heirs or assigns, are turned out of that estate 
(ousted or evicted, the law says), on the ground that the grantor 
had no title, or an incumbered title, and could not convey any 
good and clear title, he or they may fall back on the grantor or 
his heirs, and demand damages for the loss of the land. 

It is a question how much damage a grantee thus ousted 
shall recover. In most of our States, it seems to be the money 
paid for it, with interest (deducting rents and profits), and the 
legal costs and charges (not including counsel fees) for defend¬ 
ing against the suit which has ousted him from the land, and 
no more. But in other States, as generally in New England, 
the party ousted recovers the actual value of the land, with his 
improvements, which he loses by the defect of the grantor’s 
title; although this may be much more than he paid for it. It is 
not, however, settled uniformly what the measure of damages is. 

In forms of deeds there is usually a blank of a few lines left 
after the words “incumbrancesj” and this is intended for the 
insertion of any mortgage, or other incumbrance, which may 
exist; thus, “excepting a mortgage to, etc., dated, etc.,to secure 
the sum of, etc.” Or, “excepting a right in the owners of the 
adjoining land to have and maintain a drain running, etc.” 

Sometimes quitclaim deeds are made with this warranty: 
“And I will, and my heirs, etc., shall, warrant and defend, etc., 


THE USUAL CLAUSES IN DEEDS. 


449 

to the said C. D, etc., against all claims and demands of myself, 
or of any persons deriving title by or through me.” Such a 
warranty will hold the grantor and his heirs liable for any 
incumbrance made or suffered by him, but not for any other. 

As the usual covenants of a warranty deed are made with 
the grantee, “his heirs and assigns,” if such grantee conveys 
the land only by grant and quitclaim, without warranty, his 
grantee takes the benefit of all the previous warranties to 
which this last grantor was entitled. Thus, A sells with 
warranty to B; B quitclaims to C; C is ousted by D, who 
proves that he has a better title than A. C cannot sue B 
because he got no warranty from B; but he can sue A on A’s 
warranty to B, which was transferred to C. 

Sometimes estates are conveyed on condition; but this is a 
very catching thing, and nobody should ever take such a deed 
if he can help it. It i.s hardly safe to have the word condition 
in any deed but a mortgage. The reason is, that if an estate is 
conveyed on condition, and the condition is broken, the estate 
is lost. Thus if land is sold on a certain street with this 
clause: “And the land aforesaid is sold on condition that 
neither the grantee, nor any one deriving title from or through 
him, shall build within ten feet of the street.” If any owner 
build six inches over the line, by mistake, or extend his building 
by an addition of a foot or so in any part, the whole land, house 
and all, might be lost and forfeited to the grantor. And the 
grantor can always secure the proper effect of such a condition 
by a clause like this: “ Provided, however, and it is agreed, that 
if the said C D, etc., shall build, etc., the said A B, or his heirs 
or assigns, may enter upon the land hereby conveyed, and 
abate and remove any and all buildings or parts of buildings, 
which stand nearer said street than the limit of ten feet afore¬ 
said ; ”—or some similar clause, as might be framed to suit the 
case. This would be just as good for the grantor and a great 
deal safer for the grantee. 

By a rule of law which originated in this country, and is 
now universal here, if a married woman holds lands, the hus¬ 
band and the wife, joining in one deed, may convey them. In 
some of our States such a deed is regulated by statutes, which 
29 


45o 


DEEDS CONVEYING LAND. 


of course are to be followed. And in many of them the wife 
now has peculiar powers by statute, as stated in Chapter V. on 
Married Women. It may be necessary that she should 
renounce or release certain rights, as of homestead, etc., under 
these statutes, if it is intended that the grantee should take a 
clear title; and in such case proper words should be inserted. 
This is now the custom, for example, in Massachusetts. She 
hould always release her right of dower, unless it is intended 
fhat she should preserve it. In some States her signing the 
deed with her husband does not release anything, even if it 
could be proved that such was her intention, unless the deed 
contain words expressing her intention to release or convey 
such or such a right or interest. In most printed forms there 
is a blank left to be filled up for this purpose. As this differs 
in different States I shall refer to it again. 

It may be well to remark that bargains are often made for 
the purchase and sale of real property. If the contract be oral 
only, it has no force in any court. If it be in writing, either 
party may, in a court of law, recover damages from the other if 
he refuses to perform his contract. Or, in a court of equity, he 
may compel the other to execute his contract. Not, however, 
if there was fraud in the contract, or oppression, or gross 
misrepresentation, or .intentional and important concealment. 
But a mere inadequacy of price—all things being honest—will 
not prevent a court of equity from enforcing such an agreement. 

Deeds conveying land are of vast variety. They not only 
differ that they may suit the particular purposes of the parties 
and the terms of their bargain, but those used in each section 
of the country differ somewhat in form from those used in 
another; and different conveyancers in the same State prefer 
one form to another. But these differences are generally, if 
not always, differences only of form, and are seldom essential 
to the meaning and effect of the deeds. I give here forms of all 
the kinds most in use; and in such variety, and so selected and 
prepared, that it is believed that any person in any part of 
this country will be able to find a form, which, either as it 
stands, or with such alterations as can be readily seen to be 
required by the use he would make of it, will be safe, and suffi¬ 
cient for his purpose. 


THE USUAL CLAUSES IN DEEDS. 


451 


As acknowledgments differ much in form, enough of them 
are given to show the kinds that are used. The fuller and more 
particular are the safer, although the shorter and more general 
might be sufficient. 

In New England, a deed of land is usually what is called in 
law a Deed Poll; by which is meant a deed of one party, and 
from him to another. In the other States generally, a deed of 
lands is more commonly in the form of an Indenture, which, as 
has been said before, is an instrument between two or more 
parties. The difference between them will be seen in the forms 
given. The first one is a Deed Poll. But most of them are 
Indentures, as they are most frequently used; although a Deed 
Poll that was satisfactory in other respects would generally 
suffice to give good title to land anywhere. 

A form of a Deed Poll may be converted into an Indenture 
by changing the beginning of it in the manner shown in the 
forms, and, whenever the word “grantor” comes, changing that 
into “the party of the first part.” And a deed by Indenture is 
made a Deed Poll by changes of an opposite kind. How to 
make these changes will be seen by comparing the deeds of the 
two kinds as herein given. 

Another difference between the Deeds Poll in common use in 
the New England States, and the deeds by Indenture in use 
elsewhere, must be noticed. 

If the grantor by a Deed Poll has a wife, and it is intended 
that she shall relinquish her dower, she is not mentioned as 
grantor, but in the “In Testimonium,” so called, which is that 
part of the deed which begins with “ In witness (or in testimony) 
whereof,” her name is mentioned, and it must be distinctly said 
that she signs the deed in token of her relinquishment or 
release of dower. This is shown in Form 106. But where 
deeds by Indenture are used, there she is joined with her hus¬ 
band, and named as grantor; he and she being “parties of the 
first part.” It is, however, not necessary that anything should 
be said in the deed about her release of dower, or homestead; 
but she signs and seals the deed, and, in the acknowledgment, 
express mention is made of her release of dower and home¬ 
stead, and also that she was separately examined. Some 


452 


DEEDS CONVEYING LAND. 


of the forms are drawn in this way. Other forms are 
written as if the grantor was unmarried, or as if his wife, if he 
had one, did not intend to give up her dower. But all these 
forms can be readily altered, and made to resemble either of 
the forms according as there is or is not a wife, or as, if there 
be a wife, it is intended that she should join in the conveyance 
and relinquish her dower, or that the husband should convey 
subject to the wife’s dower. If this last be the intention, it is 
not necessary to say so, as the mere fact that she is not a 
party to the deed preserves for her the right of dower. 

( 100 .) 

A Deed Poll of Warranty, in Common Use in New England. 

Know all Men by these Presents, That I, ( the grantor) of 

{residence, town or city, county and State), {occupation), in consideration of 
{the amount paid) to me paid by {here 7ia7ne the grantee or 

purchaser, giving hi like 7nanner his residence and occupation), the receipt 
whereof is hereby acknowledged, do hereby give, grant, bargain, sell, and 
convey unto the said {naine the grantee, and then describe the prem¬ 

ises gra7ited, mhiutely and accurately ):— 

To Have and to Hold the above-granted premises, to the said {7iame 
the grantee), his {or hers or their) heirs and assigns, to his {or hers or their) 
use and behoof forever. And I, the said {7iame of the grantor), for 

{myself) and {my) heirs, executors, and administrators, do covenant with the 
said {naine of the grantee), and with his heirs and assigns, that I am lawfully 
seized in fee simple of the aforegranted premises ; that they are free from 
all incumbrances {if there be any inciwibrances, as a 7/iortgage or lie7i, or 
right of way, or drain, or air, or light, say excepting, and the7i describe the 
incumbrance), that I have good right to sell and convey the same to the said 
{naiyie of the gra7itee), and his {or her) heirs and assigns forever as afore¬ 
said ; and that I will, and my heirs, executors, and administrators shall, war¬ 
rant and defend the same to the said {name of the grantee), and his heirs 

and assigns forever, against the lawful claims and demands of all persons. 

In Witness Whereof, I, the said {name of the grantor), and { 7 ia 7 ne 
of his wife), wife of said grantor, in token of her release of all right and title 
of or to dower in the granted premises, have hereunto set our hands and seals 
this day of in the year of our Lord eighteen hun¬ 

dred and 

(■ Signature '.) {Seal.) 

Signed, Sealed, and Delivered in Presence of 

In those States in which a homestead law exists, the signa¬ 
ture of the wife, with a clause like that above, would not release 


FORMS OF DEEDS . 


453 

che homestead. To effect this the following clause should be 
inserted before the words, “ In token of : ”— 

“ In token of her release to the said ( name of the grantee), of all 

her right, interest, and estate to or in the premises herein conveyed, under the 
homestead laws of this State ; and also,” etc. 

Some conveyancers think this hardly sufficient, and prefer 
the following method, which would undoubtedly be effectual in 
every one of these States. Insert before the paragraph begin¬ 
ning “ In witness whereof/' this paragraph :— 

“ And I, ( name of the wife) wife of the said (, the natne of the 

grantor ), in consideration of one dollar to me paid by the said ( the name 
of the grantee), the receipt whereof is acknowledged, do hereby release and 
assign to the said ( the name of the grantee), and his heirs and assigns, 

all my right, interest, claim, and estate in or to the premises within granted, 
under the homestead laws of this State, or any other statutory provisions 
thereof.” 

It is to be remembered that, whether the deed be a warranty 
deed like that above given, or a release or quitclaim, or a mort¬ 
gage deed, it is equally necessary and proper that the wife should 
release her homestead right and her dower, unless it is intended 
that she should retain them. 

Below the deed comes the acknowledgment, of which the 
briefest form is as follows, which is sufficient in a few States : 

Commonwealth {or State) of {County) ss. {Town, Month, ana 

Date ) Then personally appeared the above-named and acknowl¬ 
edged the above instrument to be free act and deed ; before me, 

Justice of the Peace . 

If the wife is a party to the deed, she should make her sep¬ 
arate acknowledgment. 

A full Form of acknowledgment, by both parties, sufficient 
anywhere, may be found in Form 112. 

( 107 .) 

Deed of Gift by Indenture, without any "Warranty 
whatever. 

This Indenture, Made the day of in the 

year one thousand eight hundred and 


between 


454 


DEEDS CONVEYING LAND. 


( name, residence, and occupation of the grantor) of the first part, and 
{fiame, residence, and occupation of the grantee ) of the second part, witness- 
eth, that the said {the grantor) as well for and in consideration of the love 
and affection which he has and bears towards the said {thegrantee) 

as for the sum of one dollar, lawful money of the United States, to him in 
hand paid by the said party of the second part, at or before the ensealing 
and delivery of these presents, the receipt whereof is hereby acknowledged, 
has given, granted, aliened, enfeoffed, released, conveyed, and confirmed, and 
by these presents does give, grant, aliene, enfeoff, release, convey, and con¬ 
firm, unto the said party of the second part and his heirs and assigns forever, 
all {here describe carefully the land or pre?nises granted, by metes and 
bounds, and dimensions, contents or quantity, or boundary ?narks or monu¬ 
ments, and refer by volume and page to the deed of the land to the grantor , 
under which he holds it). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging or in any wise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 
And also, a Y the estate, right, title, interest, property, pos¬ 

session, claim, and demand whatsoever, of the said party of the first part, of, 
in, and to the same, and every part and parcel thereof, with their and every 
of their appurtenances. To have and to hold the said hereby granted and 
described premises and every part and parcel thereof with the appurtenances 
unto the said party of the second part, and his heirs and assigns, to his and 
their only proper use, benefit, and behoof forever. 

In Witness Whereof, The said party of the first part has hereunto set 
his hand and seal the day and year first above written. 

{Signature.) {Seal.) 

Sealed and Delivered in the Presence of 

( 108 .) 

Deed of Bargain and Sale without any Warranty. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between 

{name, residence , and occupation of the grantor) of the first part, and 
{name, residence , and occupatiofi of the grantee) of the second part, witness¬ 
ed, that the said party of the first part, for and in consideration of the sum 
of lawful money of the United States of America, to him in 

hand paid, by the said party of the second part, at or before the ensealing 
and delivery of these presents, the receipt whereof is hereby acknowledged, 
has granted, bargained, sold, aliened, remised, released, conveyed, and con¬ 
firmed, and by these presents does grant, bargain, sell, aliene, remise, release, 
convey, and confirm, unto the said party of the second part, and to his 

and assigns forever, all {here describe carefully the land or premises 
granted ,, as directed in Form 107). 


FORMS OF DEEDS. 


455 


Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereto belonging or in any wise appertaining, and the reversion and 
reversions, remainder and remainders, rents, issues, and profits thereof. And 
also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, or to the above-described premises, and every part and parcel 
thereof, with the appurtenances. To have and to hold all and singular the 
above mentioned and described premises, together with the appurtenances, 
unto the said party of the second part, and his heirs and assigns forever. 

In Witness Whereof, The said party of the first part has hereunto set 
his hand and seal the day and year first above written. 

( Signature .) (Seal.) 

Sealed and Delivered in the Presence of 


State of 
County of 

On this day of in the year one thou¬ 
sand eight hundred and before me personally came 

(the name of the party of the first part who is the grantor) who is known 
by me to be the individual described in, and who executed the foregoing in¬ 
strument, and then and there acknowledged that he executed the same as 
and for his own deed. 



( 109 .) 


(Signature.) 


Quitclaim Deed without any Warranty. 


This Indenture, Made the day of in the 

year one thousand eight hundred arnd between 

{name, residence, and occupation of the grantor) of the first part, and 
(name, residence, and occupation of the grantee) of the second part, witness¬ 
ed, that the said party of the first part, for and in consideration of the sum 
of lawful money of the United States of America, to him 

in hand paid, by the said party of the second part, at or before the ensealing 
and delivery of these presents, the receipt whereof is hereby acknowledged, 
has remised, released, and quitclaimed, and by these presents does remise, 
release, and quitclaim, unto the said party of the second part, and to his heirs 
and assigns forever, all (here describe carefully the land or premises granted, 
as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereto belonging or in any wise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 
And also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, or to the above-described premises, and every part and parcel 
thereof, with the appurtenances. To have and to hold all and singular the 


DEEDS CONVEYING LAND. 


456 

above mentioned and described premises, together with the appurtenances, 
unto the said party of the second part, and his heirs and assigns forever. 

In Witness Whereof, The said party of the first part has hereunto set 
his hand and seal the day and year first above written. 

(. Signature.) {Seal.) 

Sealed and Delivered in the Presence of 


State of 
County of 


ss. 


On this day of in the year one thou¬ 
sand eight hundred and before me personally came 

{the name of the grantor) who is known by me to be the individual described 
in, and who executed the foregoing instrument, and acknowledged that he 
executed the same. 


( 110 .) 


(. Signature.) 


Deed Poll of Release and Conveyance, Short Form. 

Know all Men by these Presents, That I, {the name 

of releasor) of the County of and State of 

for and in consideration of one dollar to me in hand paid, and for other 
good and valuable considerations, the receipt whereof is hereby confessed, 
do hereby grant, bargain, remise, convey, release, and quitclaim unto 
{the name of the releasee) of the County of 
and State of all the right, title, interest, claim, or demand 

whatsoever, I may have acquired in, through, or by a certain indenture or 
deed, bearing date the day of 

A. D. 18 , and recorded in the office of 

County, and State of in book of 

page to the premises therein described, to wit {here describe 

carefully the land or premises granted, as directed in Form 107). 

Witness my hand and seal, this day of 

A. D. 18 

{Signature?) {Seal.) 

State of 

County. 

I, in and for said county, in the State aforesaid, 

do hereby certify, that {the name of the releasor) personally 

known to me as the same person whose name is subscribed to the foregoing 
deed, appeared before me this day, in person, and acknowledged that he 
signed, sealed, and delivered the said instrument in writing, as his own free 
and voluntary act, for the uses and purposes therein set forth. 

Given under my hand and seal, this day of 

A. D. 18 



{Signature?) {Seal.) 


FORMS OF DEEDS. 


4 57 


( 111 .) 

Deed, with Special Warranty against the Grantor only. 

This Indenture, Made this day of in 

the year of our Lord one thousand eight hundred and between 

{the name of the grantor) and {name of the 

wife of grantor) wife of the said ( na7ne of the grantor) 

of the County of and State of 

parties of the first part, and (name and residence of the grantee) 

party of the second part: Witnesseth, that the said parties of the first part, 
for and in consideration of the sum of to them paid 

by the said party of the second part, the receipt of which is hereby acknowl¬ 
edged, do by these presents grant, bargain, and sell unto the said party of 
the second part, and his heirs and assigns, the following-described tract 
or parcel of land, situate in {here describe carefully the land or premises 
granted ’ as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereto belonging, or in any wise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof; 
and also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said parties of the first 
part, of, in, or to the above-described premises, and every part and parcel 
thereof, with the appurtenances. To have and to hold all and singular the 
above-mentioned and described premises, together with the appurtenances, 
unto the said party of the second part and his heirs and assigns forever. 

And the said the said parties of the first part, hereby 

expressly waive, release, and relinquish unto the said party of the second 
part, and his heirs, executors, administrators, and assigns, all right, title, 
claim, interest, and benefit whatever, in and to the above-described premises, 
and each and every part thereof, which is given by or results from all laws 
of this State pertaining to the exemption of homesteads. 

And the sMd parties of the first part, for themselves and their heirs, 
executors, and administrators, do hereby covenant, promise, and agree to 
and with the said party of the second part, his heirs and assigns, that the 
said premises against the claim of all persons, claiming or to claim by, 
through or under them only, they will forever warrant and defend. 

In Testimony Whereof, The said parties of the first part have hereunto 
set their hands and seals the day first above written. 

{Signature of grantor.) {Seal.) 

{Signature of wife of grantor) {Seal.) 

Sealed and Delivered in Presence of 

State of 

County. 

X, in and for said county, in the State aforesaid, do 

hereby certify that {name of the grantor) personally known to me as 



DEEDS CONVEYING LAND. 


458 

the same person whose name is subscribed to the annexed deed, appeared 
before me this day in person, and acknowledged that he signed, sealed, and 
delivered the said instrument of writing as his free and voluntary act, for the 
uses and purposes therein set forth. 

And the said {name of the grantor's wife) wife of the said 

{name of the grantor) having been by me examined, separate and apart and 
out of the hearing of her husband, and the contents and meaning of the said 
instrument of writing having been by me fully made known and explained 
to her, and she also by me being fully informed of her right under the 
Homestead Laws of this State, acknowledged that she had freely and vol¬ 
untarily executed the same, and relinquished her dower to the lands and 
tenements therein mentioned, and also all her rights and advantages under 
and by virtue of all laws of this State relating to the exemption of home¬ 
steads, without compulsion of her said husband, and that she does not wish 
to retract the same. 

Given under my hand and seal, this day of 

A. D. 18 

{Signature?) {Seal) 

( 112 .) 

Quitclaim Deed.—Long Form Homestead Waiver. 

This Indenture, Made the day of in the year 

of our Lord one thousand eight hundred and between 

{name, residence, and occupation of the grantor, and 7 ia?ne of the grantors 
wife) parties of the first part, and {name, residence , a 7 id occupation of the 
gra?itee) party of the second part, 

Witnesseth, That the said party of the first part, for and in considera¬ 
tion of dollars, in hand paid by the said party of the second 

part, the receipt whereof is hereby acknowledged, and the said party of the 
second part, forever released and discharged therefro\n, have remised, 
released, sold, conveyed, and quitclaimed, and by these presents do remise, 
release, sell, convey, and quitclaim unto the said party of the second part, 
his heirs and assigns forever, all the right, title, interest, claim, and demand 
which the said party of the first part have in and to the following described 
lot , piece , or parcel , of land, to wit {here describe carefully the land or 
pre?nises granted, as directed in Form 107). 

To Have and to Hold the Same, Together with all and singular the 
appurtenances and privileges thereunto belonging, or in any wise thereunto 
appertaining ; and all the estate, right, title, interest, and claim whatever of 
the said party of the first part, either in law or equity, to the only proper 
use, benefit, and behoof of the said party of the second part, his heirs and 
assigns forever. 

And the said parties of the first part hereby expressly waive, release, and 
relinquish unto the said party of the second part, his heirs, executors, adminis¬ 
trators, and assigns, all right, title, claim, interest, and benefit whatever in 


FORMS OF DEEDS. 


459 


and to the above-described premises, and each and every part thereof which 
is given by or results from all laws of this State pertaining to the exemption 
of homesteads. 

And the said parties of the first part, for themselves and their heirs, 
executors, and administrators, do covenant, promise, and agree, to and with 
the said party of the second part, his heirs, executors, administrators, and 
assigns, that they have not made, done, committed, executed, or suffered any 
act or acts, thing or things whatsoever, whereby, or by means whereof, the 
above-mentioned and described premises, or any part or parcel thereof, now 
are, or at any time hereafter shall or may be, impeached, charged, or incum¬ 
bered, in any way or manner whatsoever. 

In Witness Whereof, The said party of the first part hereunto set their 
hands and seals the day and year above written. 

(Signature of grantor.) (Seal.) 

(Signature of wife of grantor) (Seal.) 

Signed\ Sealed ,’ and Delivered in Presence of 

State of , 

County. 

I, in and for said county, and the State aforesaid, do 

hereby certify, that (name of the grantor) being personally known to me as 
the same person whose name is subscribed to the foregoing instrument of 
writing, appeared before me this day, in person, and acknowledged that he 
signed, sealed, and delivered the said instrument of writing as his free and 
voluntary act, for the uses and purposes therein set forth. 

And the said (name of the wife) wife of the said (natne of the grantor) 
having been by me examined separate and apart, and out of the hearing of 
her husband, and the contents and meaning of the said instrument of writ¬ 
ing having been by me fully made known and explained to her, and she 
also by me being fully informed of her rights under the Homestead Laws of 
this State, acknowledged that she had freely and voluntarily executed 
the same, and relinquished her dower to the lands and tenements therein 
mentioned, and also all her rights and advantages under and by virtue 
of all laws of this State relating to the exemption of homesteads, without 
the compulsion of her said husband, and that she does not wish to retract 
the same. 

Given under my hand and official seal, this day of 

A. D. 18 

(Signature) (Seal) 

(1130 

Deed, with Covenant against Grantor, without Release of 
Homestead or Dower. 

This Indenture, Made the day of in the year 

one thousand eight hundred and between (name of the grantor) 



DEEDS CONVEYING LAND. 


460 

of the first part, and ( name of the grantee') of the second part, witnesseth. 
That the said party of the first part, for and in consideration of the sum of 
lawful money of the United States of America, to him 
in hand paid by the said party of the second part, at or before the ensealing 
and delivery of these presents, the receipt whereof is hereby acknowledged, 
ha granted, bargained, sold, aliened, remised, released, conveyed, and 
confirmed, and by these presents do grant, bargain, sell, aliene, remise, re¬ 
lease, convey, and confirm unto the said party of the second part, and to his 
heirs and assigns forever, all ( here describe carefully the land or premises 
granted\ as directed in Fomn 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging or in any wise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 
And also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, or to the above-described premises, and every part and parcel 
thereof, with the appurtenances. To have and to hold all and singular the 
above mentioned and described premises, together with the appurtenances, 
unto the said party of the second part, and his heirs and assigns forever. 

And the said {name of the grantor ) for (himself) and (his) heirs, execu¬ 

tors, and administrators, does hereby covenant, promise, and agree to and 
with the said party of the second part, and his heirs and assigns, that (lie) ha 
not made, done, committed, executed, or suffered any act or acts, thing or 
things whatsoever, whereby or by means whereof, the above mentioned and 
described premises, or any part or parcel thereof, now are, or at any time 
hereafter shall or may be, impeached, charged, or incumbered in any manner 
or way whatsoever. 

In Witness Whereof, The said party of the first part ha hereunto set 
(his) hand and seal the day and year first above written. 

{Signature .) {Seal .) 

Sealed and Delivered in the Presence of 
State of , 

County. 

I, in and for said county, and the State aforesaid, do 

hereby certify, that {name of the grantor) being personally known to 

me as the same person whose name (is) subscribed to the foregoing instrument 
of writing, appeared before me this day, in person, and acknowledged that 
(he) signed, sealed, and delivered the said instrument of writing as (his) free 
and voluntary act, for the uses and purposes therein set forth. 

Given under my hand and official seal this day of 

A.D. 18 



{Signature.) {Seal.) 


FORMS OF DEEDS. 


461 


( 114 .) 

Separate Relinquishment of Homestead and Dower in 
Land sold under Execution. 

Know all Men by these Presents, That we {name and residence 
of the debtor ) and {name of his wife') wife of the said 
of the County of and State of , parties of 

the first part, for the sum of one dollar to us paid by {name of the 

;purchaser ) of the County of and State of 

party of the second part, the receipt whereof is hereby acknowledged, do 
hereby agree and consent to let the said party of the second part levy and 
sell, under a certain execution, in favor of him, the said party of the second 
part, and against {name of the debtor , or the defendant in the suit in 

which the execution issued ) now in the hands of the sheriff of the County of 
and State of and dated the 

day of A.D. 18 , the following-described tract of land, 

situated in the County of and State of to wit {here 

describe carefully the land or premises granted , as directed in For?n 107), 
(and being the same land heretofore held, used, and occupied by the said 
parties of the first part, as a homestead) hereby waiving, releasing, relin¬ 
quishing, and surrendering to and in favor of said party of the second part, 
under the said levy and sale on said execution, all the right, title, claim, 
interest, and benefit which we, the said parties of the first part, and each of 
us, have in and to said premises, by virtue of any and all homestead-exemp¬ 
tion laws, now or heretofore in force in the State of , and more 

especially “ An Act to exempt Homesteads from Sale on Execution,” now in 
force in the State of 

Witness our hands and seals 


State of , 

County. 

I, in and for said county, in the State aforesaid, do 

hereby certify that personally known to me as the same 

person whose name is subscribed to the annexed instrument, appeared 
before me this day in person, and acknowledged that he signed, sealed, 
and delivered the said instrument of writing as his free and voluntary act, 
for the uses and purposes therein set forth. 

And the said {the na?ne of the wife ) wife of the said 
having been by me examined, separate and apart, and out of the hearing of 
her husband, and the contents and meaning of the said instrument of writing 
having been by me fully made known and explained to her, and she also by 
me being fully informed of her rights under the Homestead Laws of this 
State, acknowledged that she had freely and voluntarily executed the same, 
and relinquished her dower to the lands and tenements therein mentioned, 


this the day of 18 . 

{Signature.) {Seal.) 
(. Signature.) {Seal.) 



DEEDS CONVEYING LAND . 


462 

without compulsion of her said husband, and that she does not wish to 
retract the same. 

Given under my hand and seal this day of A.D. 18 . 

( Signature .) (Seal.) 

( 115 .) 

Full Warranty Deed, by Indenture, without Release of 
Homestead or Dower. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between (name, 

residence , and occupation of the grantor) party of the first part, and 
(name, residence , and occupation of the grantee) party of the second part, 
witnesseth, that the said party of the first part, for and in consideration of 
the sum of lawful money of the United States, to him 

in hand paid by the said party of the second part, at or before the ensealing 
and delivery of these presents, the receipt whereof is hereby acknowledged, 
and the said party of the second part, and his heirs, executors, and admin¬ 
istrators, forever released and discharged from the same, by these presents, 
has granted, bargained, sold, aliened, remised, released, conveyed, and con¬ 
firmed, and by these presents does grant, bargain, sell, aliene, remise, release, 
convey, and confirm, unto the said party of the second part, and to his heirs 
and assigns forever, all (here describe carefully the land or premises granted, 
as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in any wise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 
And also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the 
first part, of, in, and to the same, and every part and parcel thereof with the 
appurtenances: To have and to hold the above granted, bargained, and 
described premises, with the appurtenances, unto the said party of the 
second part, and his he'rs and assigns, to his and their own proper use, 
benefit, and behoof forever. 

And the said (name of the grantor) for himself and his heirs, 

executors, and administrators, does covenant, grant, and agree to and with 
the said party of the second part, and his heirs and assigns, that the said 
(name of grantor) at the time of the sealing and delivery of these 
presents, is lawfully seized, in his own right, of a good, absolute, and 
indefeasible estate of inheritance, in fee simple, of and in all and singular 
the above granted and described premises, with the appurtenances thereunto 
belonging, and has good right, full power, and lawful authority to grant, 
bargain, sell, and convey the same, in manner aforesaid. And that the said 
party of the second part, and his heirs and assigns, shall and may at all 
times hereafter, peaceably and quietly, have, hold, use, occupy, possess, and 
enjoy the above-granted premises, and every part and pafcel thereof, with 


FORMS OF DEEDS. 


463 

the appurtenances, without any let, suit, trouble, molestation, eviction, or 
disturbance of the said party of the first part, or his heirs or assigns, or of 
any other person or persons lawfully claiming or to claim the same; and 
that the same now are free, clear, discharged, and unincumbered, of and 
from all former and other grants, titles, charges, estates, judgments, taxes, 
assessments, and incumbrances of what nature or kind soever. 

And also that the said party of the first part, and his heirs, and all and 
every person or persons whomsoever, lawfully or equitably deriving any 
estate, right, title, or interest, of, in, or to the hereinbefore granted premises, 
by, from, under, or in trust for him or them, shall and will, at any time or 
times hereafter, upon the reasonable request, and at the proper costs and 
charges in the law, of the said party of the second part, his heirs and assigns, 
make, do, and execute, or cause to be made, done, and executed, all and 
every such further and other lawful and reasonable acts, conveyances, and 
assurances in the law, for the better and more effectually vesting and con¬ 
firming the premises hereby granted or so intended to be, in and to the said 
party of the second part, his heirs and assigns, forever, as by the said party 
of the second part, his heirs or assigns, or his or their counsel learned in 
the law shall be reasonably advised or required. And the said party of the 
first part, for himself and his heirs, the above-described and hereby granted 
and released premises, and every part and parcel thereof, with the appur¬ 
tenances, unto the said party of the second part, and his heirs and assigns, 
against the said party of the first part, and his heirs, and against all and 
every person and persons whomsoever, lawfully claiming or to claim the 
same, shall and will warrant and by these presents forever defend. 

In Witness Whereof, the said party of the first part has hereunto set 
his hand and seal the day and year first above written. 

(. Signature .) (Seal.) 

Sealed and Delivered in the Presence of 

State of 
County of 

On the day of in the year one thousand 

eight hundred and before me personally came (the name 

of the grantor) who is known to me to be the individual described in, and 
who executed, the foregoing instrument, and acknowledged that he executed 
the same, as his own free act and deed. 



(Signature.) 


464 


DEEDS CONVEYING LAND. 


(HO.) 

Warranty Deed, Short Form, with Release of Homestead 

and Dower. 

This Indenture, made this day of 

in the year of our Lord one thousand eight hundred and 
between (name, residence, and occupation of grantor, and name of his 
wife ) of the first part, and (name, residence, and occupation of grantee') 

of the second part, witnesseth, that the said party of the first part, in con¬ 
sideration of the sum of dollars in hand paid (the receipt whereof 

is hereby acknowledged), have granted, bargained, and sold, and by these 
presents do grant, bargain, and sell, unto the said party of the second part, 
his heirs and assigns, all that piece or parcel of land situate in 
in the County of and State of to wit 

(here describe carefully the land or premises granted, as directed in Form 
107). 

Together with the appurtenances thereunto belonging; and all the estate, 
right, title, interest, claim, and demand of the said party of the first part 
herein. 

And the said (name of grantor a?id of his wife) parties of the first 

part, hereby expressly waive, release, relinquish, and convey unto the said 
party of the second part, and his heirs, executors, administrators, and assigns, 
all right, title, claim, interest, and benefit whatsoever, in and to the above- 
described premises, and each and every part thereof, which is given by or 
results from any and all laws of this State, pertaining to the exemption of 
homesteads. 

And the said (name of grantor and of his wife ) for themselves and 

their heirs, executors, and administrators, do covenant, grant, bargain, and 
agree to and with the said party of the second part, and with his heirs and 
assigns, that the above-bargained premises in the quiet and peaceable pos¬ 
session of the said party of the second part, and his heirs and assigns, the 
said party of the first part shall and will warrant and forever defend. 

In Witness Whereof, The said parties of the first part have hereunto 
set their hands and seals the day and year first above written. 

(Signature of grantor.) (Seal.) 

(Signature of wife of grantor.) (Seal.) 

Signed, Sealed, and Delivered in Presence of 

State of 

County. 

I> in and for said county, do hereby certify that 

(name of grantor) who is personally known to me as the same 
person whose name is subscribed to the annexed deed, appeared before me 
this day, in person, and acknowledged that he signed, sealed, and delivered 



FORMS OF DEEDS. 


465 

the said instrument of writing, as his free and voluntary act, for the uses and 
purposes therein set forth. 

And the said (; name of the wife of grantor) wife of the said 

{name of the grantor) having been by me examined separate and apart, and 
out of the hearing of her husband, and the contents and meaning of the said 
instrument of writing been by me fully made known and explained to her, 
and she also by me having been fully informed of her rights, under the 
Homestead Laws of this State, acknowledged that she had freely and volun¬ 
tarily executed the same, and relinquished her dower to the lands and tene¬ 
ments therein mentioned, and also all her rights and advantages, under and 
by virtue of any and all laws of this State relating to the exemption of home¬ 
steads, without compulsion of her said husband, and that she does not wish to 
retract the same. 

Given under my hand and official seal, this day of 

A.D. 18 . 


(. Signature .) (Seal.) 


( 117 .) 

Warranty Deed, with Covenant against Nuisances, without 
Release of Homestead or Dower. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between (name, 

residence, and occupation of the grantor) party of the first part, and 
(name, residence , and occupation of the grantee) party of the second part, 
witnesseth, that the said party of the first part, for and in consideration of 
the sum of lawful money of the United States, to him in hand paid 

by the said party of the second part, at or before the ensealing and delivery 
of these presents, the receipt whereof is hereby acknowledged, and the said 
party of the second part, his heirs, executors, and administrators, forever 
released and discharged from the same, by these presents, has granted, bar¬ 
gained, sold, aliened, remised, released, conveyed, and confirmed, and by 
these presents does grant, bargain, sell, aliene, remise, release, convey, and 
confirm, unto the said party of the second part, and to his heirs and assigns 
forever, all ( here describe carefully the land or premises granted, as directed 
in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in anywise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof: 
And also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, and to the same, and every part and parcel thereof, with the 
appurtenances: to have and to hold the above granted, bargained, and 
described premises, with the appurtenances, unto the said party of the sec- 
30 


DEEDS CONVEYING LAND. 


4 66 

ond part, and his heirs and assigns, to his and their own proper use, benefit, 
and behoof forever. 

And the said party of the first part, for himself and for his heirs, execu¬ 
tors, and administrators, does hereby covenant, grant, and agree to and with 
the said party of the second part, and his heirs and assigns, that the said 
party of the first part, at the time of the sealing and delivery of these pres¬ 
ents, is lawfully seized in his own right of a good, absolute, and indefeasible 
estate of inheritance, in fee-simple, of, and in all and singular the above¬ 
granted and described premises, with the appurtenances to them belonging; 
and has good right, full power, and lawful authority, to grant, bargain, sell, 
and convey the same, in manner aforesaid. 

And that the said party of the second part, and his heirs and assigns, 
shall and may at all times hereafter, peaceably and quietly have, hold, use, 
occupy, possess, and enjoy the above-granted premises, and every part and 
parcel thereof, with the appurtenances, without any let, suit, trouble, moles¬ 
tation, eviction, or disturbance of the said party of the first part, or his heirs 
or assigns, or of any other person or persons lawfully claiming or to claim 
the same : And that the same now are free, clear, discharged, and unincum¬ 
bered, of and from all former and other grants, titles, charges, estates, judg¬ 
ments, taxes, assessments, and incumbrances of what nature or kind soever. 

And also that the said party of the first part, and his heirs, and all and 
every person or persons whomsoever, lawfully or equitably deriving any 
estate, right, title, or interest, of, in, or to the hereinbefore granted premises, 
by, from, under or in trust for him or them, shall and will, at any time or 
times hereafter, upon the reasonable request, and at the proper costs and 
charges in the law, of the said party of the second part, his heirs and assigns, 
make, do, and execute, or cause to be made, done, and executed, all and 
every such further and other lawful and reasonable acts, conveyances, and 
assurances in the law, for the better and more effectually vesting and con¬ 
firming the premises hereby granted, or so intended to be, in and to the said 
party of the second part, his heirs and assigns, forever, as by the said party 
of the second part, his heirs or assigns, or his or their counsel learned in 
the law, shall be reasonably advised or required. And the said party of the 
first part, for himself and for his heirs, the above-described and hereby 
granted and released premises, and every part and parcel thereof, with the 
appurtenances, unto the said party of the second part, and his heirs and 
assigns, against the said party of the first part, and his heirs, and against all 
and every person and persons whomsoever, lawfully claiming or to claim the 
same, shall and will warrant and by these presents forever defend. 

And the said party of the second part, for himself and for his heirs and 
assigns does hereby covenant to and with the said party of the first part, and 
with his heirs, executors, and administrators, that neither the said party of 
the second part, nor his heirs or assigns, shall or will at any time hereafter 
erect or permit upon any part of the said lot, any slaughter-house, smith- 


FORMS OF DEEDS. 


4 67 

shop, forge, furnace, steam-engine, brass-foundry, nail or other iron factory, 
or any manufactory of gunpowder, glue, varnish, vitriol, ink, or turpentine, 
or for the tanning, dressing, or preparing skins, hides, or leather, or any 
brewery, distillery, livery-stable, or buildings for any noxious or dangerous 
trade or business. 

In Witness Whereof, the parties to these presents have hereunto inter¬ 
changeably set their hands and seals the day and year first above written. 

{Signature) (Seal.) 

Sealed and Delivered in Presence of (Signature) (Seal) 


State of 

County of 

On this day of in the year one thousand 

eight hundred and before me personally came (the name 

of the party of the first part, who is the grantor) who is known by me to be 
the individual described, and who executed the foregoing instrument, and 
then and there acknowledged that he executed the same as and for his own 
deed. 

(Signature) 



( 118 .) 

Brief Warranty Deed in use in Kentucky. 

This Deed, made the day of 18 

between (name, description, and residence of grantor, and name of 

grantor's wife if her relinquishment of dower is intended) of the first part, 
and of the second part, 

Witnesseth, That said first party, in consideration of 
ha bargained and sold and hereby convey unto said second party, 

(here describe the premises granted as directed in Form 107) to have and to 
hold said property unto said second party, heirs and assigns forever, 

“ with Covenant of General Warranty,” releasing all rights of homestead 
and dower. 

Witness the hand of the parties, date above. 

(Signatures) (Seals) 


Logan County, Sct: 

I, , Clerk of the County Court, do certify that the 

foregoing Deed was this day produced to me in my 

and acknowledged by to be act and deed. 

Given under my hand, this day of 18 . 


By 


Clerks- 

D.C 


468 


DEEDS CONVEYING LAND. 


( 119 .) 

Brief Deed of "Warranty in use in Arkansas. 

Know all Men by these Presents, That we (name, description, 

and residence of grantor) and ( name of grantor's wife) his wife, for 

and in consideration of the sum of dollars, to 

paid by do hereby grant, bargain, and sell unto the said 

and h heirs and assigns forever, the following lands, 
lying in the county of and State of Arkansas, to wit: 

(describe the premises granted as directed in Form 107,) to have and to hold 
the same unto the said and unto h heirs and assigns 

forever, with all appurtenances thereunto belonging. 

And hereby covenant with the said 

that will forever warrant and defend the title to said lands 

against all claims whatever. 

And I, wife of the said for and in con¬ 

sideration of the said sum of money, do hereby release and relinquish unto 
the said all my right of dower in and to the said lands. 

Witness our hands and seals on this day of 18 . 

(Signatures.) (Seals.) 

State of Arkansas, 

County of 

Be it Remembered, That on this day came before the undersigned, a 
within and for the county aforesaid, duly commissioned 
and acting to me well known as the grantor in the foregoing 

deed, and stated that he had executed the same for the consideration and 
purposes therein mentioned and set forth. 

And, on the same day, also voluntarily appeared before me, the said 

wife of the said to me well known, and in 

the absence of her said husband, declared that she had of her own free will 
signed and sealed the Relinquishment of Dower in the foregoing deed, for 
the purposes therein contained and set forth, without compulsion or undue 
influence of her said husband. 

Witness my hand and seal as such on this 

day of 18 . 

(Signature.) 



( 120 .) 

Brief Warranty Deed in use in Florida. 

This Indenture, Made this day of A.D., 

18 , between (name, residence, and occupation of the grantor) of the 

first part, and (name, residence , and occupation of the grantee) of the 

second part, witnesseth, That the said part of the first part, for and in 


FORMS OF DEEDS. 


469 

consideration of the sum of dollars, paid by the said 

part of the second part, the receipt of which is hereby acknowledged, 
ha granted, bargained, sold, conveyed, and confirmed, and by these pres¬ 
ents do grant, bargain, sell, convey, and confirm unto the said part 
of the second part, heirs and assigns, certain tract or parcel of land, 
situated in and described as follows, to wit: (here 

describe the land or premises granted, carefully , as directed in Form 107), to¬ 
gether with all and singular, the hereditaments, rights, privileges, and appur¬ 
tenances thereunto belonging, or in any wise appertaining, to have and to 
hold the said premises, as above described, with the appurtenances, to the 
said part of the second part, heirs and assigns forever. 

And the said part of the first part, for sel and heirs, 
executors, and administrators, do hereby covenant to and with the said 
part of the second part heirs, executors, administrators, and assigns, 
that well seized of the premises above conveyed, as of a 

good and indefeasible estate in fee-simple, and ha good right to sell and 
convey the same in manner and form as aforesaid; that they are free from 
all encumbrances, and that the above bargained premises, in the quiet and 
peaceful possession of the said part of the second part, heirs or 

assigns, against the claims of all persons whomsoever, will warrant and for¬ 
ever defend. 

In Witness Whereof, The said part of the first part ha hereunto 
set hand and seal the day and year first above written. 

(Signature) (Seal.) 

(Signature) (Seal) 

Signed\ Sealed\ and Delivered in Presence of 


State of Florida, 

County. 


ss. 


I, wife of do hereby declare that I 

have joined with my said husband in the execution of the above deed for 
the purpose of relinquishing and renouncing my right of dower, and all my 
right, title, interest, in and to the above described premises and lands, or 
parcels of land. And I do hereby declare that I executed the same freely 
and voluntarily, and without any compulsion, constraint, apprehension, or 
fear of, or from, my said husband ; and that this acknowledgment is taken 
and made, signed, and sealed, separately and apart from my said husband, 
this day of A.D. 18 

(Signature) (Seal) 

State of Florida, > 

>- ss. 


County. 


I, a in and for the 

said county, do hereby certify that the foregoing declaration was taken and 
made by the said before me separately and apart from 

her husband—the said ; and that, having been, by 


470 


DEEDS CONVEYING LAND. 


me, made acquainted with the contents cf the said deed before the signing 
thereof by her, and being, by me, examined separate and apart from her said 
husband,.acknowledged that she had executed the same, and relinquished and 
renounced her dower, and all her right, title, and interest in and to the prem¬ 
ises conveyed, freely and voluntarily, and without any compulsion, constraint, 
apprehension, or fear of, or from, her said husband. 

In Witness Whereof, I have hereunto set my hand and affixed my offi¬ 
cial seal, this day of A.D. 18 

( Signature .) 

State of Florida, 

County. 

I, for said county, do certify that, on this day, 

personally appeared before me whose name appear 

signed to the foregoing deed of conveyance, and who personally known 
to me to be the identical person whose name subscribed to said deed 

as having executed the same, and acknowledged that had executed 

the same, as voluntary act and deed, for the uses and purposes therein 
expressed. 



In Witness Whereof, I have hereunto set my hand and affixed my official 
seal this day of A.D. 18 

( Signature .) 


( 121 .) 


Brief Warranty Deed in use in North Carolina. 

This Deed, Made this day of 18 , 

by ( name and occupation of grantor), of county, 

and State of to ( name and occupation of grantee), of 

county, and State of Witnesseth : 

That said in consideration of dollars, 

to P a id by , the receipt of which is hereby 

acknowledged, ha bargained and sold, and by these presents do 
bargain, sell, and convey to said and heirs, a tract 

of land in county, State of 

adjoining the lands of and others, bounded and described 

as follows, viz: (here describe carefully the land or premises 

granted, as directed in Form 107). 


To Have and to Hold the aforesaid tract and all privileges 

and appurtenances thereto belonging, to the said heirs and 

assigns, to only use and behoof. 

And the said covenant that seized of sa : d 

premises in fee, and ha right to convey the same in fee-simple, that the 
same are free from all incumbrances, and that will warrant 

and defend the said title to the same, against the claims of all persons what¬ 
soever. 


FORMS OF DEEDS. 


471 

And I wife of the said grantor, for the aforesaid con¬ 

siderations do hereby grant and release to the said grantee and 
heirs, all my right of dower and all other my right, title, and interest in and 
to the premises above granted. 

In Testimony Whereof, The said {name of grantor and his wife') 

have hereunto set our hands and seals, the day and year above written. 

(, Signatures .) (Seals.) 

Attest : 


State of North Carolina, 


ss. 


County. 

I, Clerk of the Court, do hereby 

certify that and his wife, appeared 

before me this day, and acknowledged the due execution of the annexed deed 
of ; and the said being by me pri¬ 

vately examined, separate and apart from her said husband, touching her vol¬ 
untary execution of the same, doth state that she signed the same freely and 
voluntarily, without fear or compulsion of her said husband or any other 
person, and that she doth still voluntarily assent thereto. 

Let the same, with this certificate, be registered. 

Witness my hand and official seal, this day of 

A.D. 18 . 

Clerk Cou?-t. 

State of North Carolina, 


ss. 

County. 

I, Justice of the Peace, do hereby certify that 

and his wife, personally appeared before 

me this day, and acknowledged the due execution of the within deed of 

; and the said being by me privately exam¬ 

ined, separate and apart from her said husband, touching her voluntary exe¬ 
cution of the same, doth state that she signed the same freely and volunta¬ 
rily, without fear or compulsion of her said husband or any other person, and 
that she doth still voluntarily assent thereto. 

Witness my hand and private seal, this day of 

A.D. 18 . 

, J. P. (Seal.) 

State of North Carolina, ) 

f ss. 

County. ) 

The foregoing certificate of , a Justice of the Peace 

of County, is adjudged to be in due form and accord¬ 

ing to law. Therefore, let the same, with this certificate, be registered. 

This day of 18 . 


Clerk 


Court. 


4/2 


DEEDS CONVEYING LAND. 


( 122 .) 

Brief "Warranty Deed in use in Mississippi. 

This Indenture, Made and entered into this day of 

in the year of our Lord, one thousand eight hundred and 
between {name, residence , and occupation of the grantor), 
the part of the first part and {name, residence , and occupation of the 
grantee), part of the second part, witnesseth: That the said part of 
the first part, for and in consideration of the sum of 

the receipt whereof is hereby acknowledged, ha this day granted, bar¬ 
gained, sold, and conveyed, and by these presents do grant, bargain, sell, 
and convey unto the said part of the second part, and to heirs and 

assigns, all and singular the following described of land situate, 

lying, and being in the {here describe the land or premises granted, 

carefully, as directed in Form 107). 

To Have and to Hold the said of land together with all and 

singular the rights, privileges, and appurtenances thereunto legally and of 
right belonging, to the said part of the second part, and to heirs 

and assigns in fee-simple, absolute forever, and the said part of the first 
part, for heirs, executors, administrators, and assigns, covenant and 

agree to warrant and forever defend the right, title, interest, and possession 
of the estate herein granted, to the said part of the second part, 
heirs and assigns, against the claim or claims of any and all persons claiming 
or to claim the same whatsoever either in law or equity. 

In Testimony Whereof, The said part of the first part ha here¬ 
unto set their hands and seals the day and year first above written. 

{Signatu?'es.) {Seals.) 


The State of Mississippi, j ss. 

Personally Appeared, Before me the above named 

signed, sealed, and delivered the foregoing deed, on 
the day and year therein written, as their act and deed, for the purposes 
therein set forth. 


( 123 .) 

"Warranty Deed in use in Missouri. 

This Indenture, Made on the day of 

A.D. one thousand eight hundred and by and between 

{name and occupation of the grantor, and name of his wife if she relinquishes 
dower), of {residence of the grantor), part of the first part, and 
{name and occupation of the gra?itee), of the county of in 

the State of part of the second part ; Witnesseth, 

That the said part of the first part, in consideration of the sum of 
dollars, to paid by the said part of the 


FORMS OF DEEDS. 


473 

second part, the receipt of which is hereby acknowledged, do by these 
presents, grant, bargain, sell, convey, and confirm unto the said part of the 
second part, heirs and assigns, the following described lots, tracts, 

or parcels of property, lying, being, and situate in the county of 
and State of to-wit: 

(here describe the premises granted, as directed in Form 107). 

To Have and to Hold the premises aforesaid, with all and singular the 
rights, privileges, appurtenances, and immunities thereto belonging, or in 
anywise appertaining, unto the said part of the second part, and unto 
heirs and assigns forever: the said {name of the grantor), hereby 
covenanting that lawfully seized of an indefeasible estate 

in fee in the premises herein conveyed; that ha good right to 

convey the same ; that the said premises are free and clear of any encum¬ 
brances done or suffered by or those under whom 

claim ; and that will warrant and defend the title to the said 

premises unto the said part of the second part, and unto heirs 

and assigns forever, against the lawful claims and demands of all persons 
whomsoever. 

In Witness Whereof, The said part of the first part ha here¬ 
unto set hand and seal the day and year first above written. 

{Signatures) (Seats) 

Signed ' Sealed ’ and Delivered in the Presence of 
State of 

j- ss. 

County of ) 

Be it Remembered, That on this day of , 

A.D. 18 , before the undersigned, a within and for 

the county of and State of personally 

came who are personally known to me to be the same 

persons whose names are subscribed to the foregoing instrument of writing, 
as parties hereto, and acknowledged the same to be their voluntary act and 
deed for the purposes therein mentioned. And the said 
being by me first made acquainted with the contents of said instrument, 
upon an examination separate and apart from husband , acknowl¬ 
edged that executed the same, and relinquishes dower 

in the real estate therein mentioned, freely without fear, compulsion, or undue 
influence of said husband . And I certify that I qualified as 

N otary Public and my term expires 

In Testimony Whereof, I have hereunto set my hand and affix my offi¬ 
cial seal, at my office, in the day and year first above 

written. 


(Seal) 


474 


DEEDS CONVEYING LAND. 


FORM OF ACKNOWLEDGMENT IF THE GRANTOR IS SINGLE AND 

UNMARRIED. 


State of 
County of 

Be it Remembered, That on day of 

A.D. 18 , before the undersigned, a within and for the 

county of aforesaid, personally came 

who is personally known to me to be the same person whose name is sub¬ 
scribed to the foregoing instrument of writing, as a party thereto, and 
acknowledged the same to be act and deed for the purposes therein 

mentioned. And the said further declared 

to be single and unmarried. And I certify that I qualified as Notary Public 
and my term expires 

In Testimony Whereof, I have hereunto set my hand, and affixed my 
official seal, at my office, in the day and year first above 

written. 

{Seal.) 



( 124 .) 


Brief "Warranty Deed in use in Wisconsin. 

This Indenture, Made this day of in 

the year of our Lord one thousand eight hundred and 
between {name and occupation of the grantor), of the county of 
State of of the first part, and {name a?id occupation 

of the grantee) of the county of and State of 

of the second part. Witnesseth, That the said part of the first part, for 
and in consideration of the sum of dollars, to 

in hand paid by the part of the second part, the receipt of which is 
hereby acknowledged, ha given, granted, bargained, sold, remised, 
released, aliened, and confirmed, and by these presents do give, grant, 
bargain, sell, remise, release, aliene, and confirm unto the said part 
of the second part heirs and assigns forever, the following described 

premises, real estate, lying and being in the county of 
State of to-wit; ( here describe the land granted\ as 

directed in Form 107). 

Together with all and singular, the hereditaments and appurtenances 
thereunto belonging, or in anywise appertaining, and the reversion or rever¬ 
sions, remainder and remainders, and the issues and profits thereof, and all 
the estate, right, title, interest, claim or demand whatsoever 

of the said part of the first part, either in law or equity, of and to the 
above bargained premises, with the hereditaments and appurtenances 
thereto belonging. 

To Have and to Hold the said premises above bargained, and described 
with the appurtenances, unto the said part of the second part, 


FORMS OF DEEDS. 


475 


heirs and assigns forever. And the said for 

and heirs, executors, and administrators, do covenant, grant, 

bargain, and agree, to and with the said part of the second part, 
heirs and assigns, that at the time of ensealing and delivery of these 
presents, well seized of the premises above conveyed, as of good, 

sure, perfect, absolute, and indefeasible estate of inheritance in the law 
in fee-simple, and ha good right, full power, and lawful authority to 
grant, bargain, sell, and convey the same in manner and form aforesaid, 
and that the same is free and clear of all former and other grants, bar¬ 
gains, sales, liens, judgments, taxes, assessments, and incumbrances of what 
kind and nature soever, and the part of the first part, the above bargained 
premises, in the quiet and peaceable possession of the said part of the 
second part, heirs and assigns, against all and every per¬ 

son or persons lawfully claiming or to claim the whole or any part thereof, 
will warrant and forever defend. 

In Witness Whereof, The said part of the first part ha hereunto 
set hand and seal the day and year first above written. 

(Signatures.) (Seals.) 

Signed ’ Sealed , and Delivered in Presence of 


State of 


ss. 


County of ) 

Be it Remembered, That on the day of 

A.D. 18 personally came before me the above named 
to me known to be the person who executed the foregoing deed, and 
acknowledged the execution thereof to be free act and deed 

for the uses and purposes therein mentioned. 

(Signature.) 

( 125 .) 

Warranty Deed in use in Pennsylvania. 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and between 

(name, residence , and occupation of the grantor) and (name of the 

wife of the grantor), parties of the first part, and (name, residence , 

and occupation of the grantee) party of the other part, Witnesseth, That the 
said parties of the first part, for and in consideration of the sum of 
lawful money of the United States of America, unto them well and truly 
paid by the said party of the second part, at or before the sealing and 
delivery of these presents, the receipt whereof is hereby acknowledged, 
granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by 
these presents do grant, bargain, sell, aliene, enfeoff, release, and confirm 
unto the said (name of grantee) his heirs and assigns, the following 
described parcel of land ; that is to say, (here describe 

carefully the premises granted, as directed in Form 107.) 


476 


DEEDS CONVEYING LAND. 


Together with all and singular the , ways, waters, water 

courses, rights, liberties, privileges, hereditaments, and appurtenances what¬ 
soever thereunto belonging or in any wise appertaining, and the reversions 
and remainders, rents, issues, and profits thereof; and all the estate, right, 
title, interest, property, claim, and demand whatsoever of the said parties of 
the first part in law, equity or otherwise howsoever, of, in, and to the same 
and every part thereof. 

To have and to hold the said hereditaments and premises 

hereby granted, or mentioned and intended so to be, with the appurtenances 
unto the said , his heirs and assigns, to and for the only proper 

use and behoof of the said , his heirs and assigns forever. And the 

said parties of the first part, their heirs, executors, and administrators, do 
by these presents, covenant, grant, and agree to and with the said , his 
heirs and assigns, that they, the said parties of the first part, their heirs, all 
and singular the hereditaments and premises herein above described and 
granted, or mentioned and intended so to be, with the appurtenances, unto 
the said party of the second part, his heirs and assigns, against the said 
parties of the first part, and their heirs, and against all and every other per' 
son or persons whomsoever lawful claiming or to claim the same or any part 
thereof, shall and will warrant and forever defend. 

In Witness Whereof, The said parties to these presents have hereunto 
interchangeably set their hands and seals, the day and year first above- 
written. 

( Signatures .) (Seals.) 

Sealed and Delivered in Presence of 

Received, The day of the date of the within or aforegoing Indenture of 
the within named 

On the day of Anno Domini, 18 before me 

personally appeared the above named ( names of grantor and 

grantee) and in due form of law acknowledged the above Indenture to be 
their and each of their act and deed, and desired the same might be recorded 
as such, and the said being of full age ai d separate and 

apart from said husband by me thereon privately examined, and the 

full contents of the above Deed being by me first made known unto 
did thereupon declare and say that did voluntarily and of 

own free will and accord, sign, seal, and as act and deed, deliver 

the above written Indenture, Deed or Conveyance without any coercion or 
compulsion of said husband. 

Witness my hand and seal, the day and year aforesaid. 

(. Signature .) (Seal.) 

( 126 .) 

Full Warranty Deed in use in New Jersey. 

This Indenture, Made the day of in the year 

one thousand eight hundred and between (name, residency 


FORMS OF DEEDS. 


477 


and occupation of the grantor or grantors) part of the first part, and 
0 name, residence, and occupation of the grantee or grantees) part of the 
second part, witnesseth, that the said part of the first part, for and in con¬ 
sideration of the sum of lawful money of the United States 

of America, to in hand paid by the said part of the second part, 

at or before the ensealing and delivery of these presents, the receipt 
whereof is hereby acknowledged, and the said part of the second part, 
heirs, executors, and administrators, forever released and discharged 
from the same by these presents, ha granted, bargained, sold, aliened, 
remised, released, conveyed, and confirmed, and by these presents do 
grant, bargain, sell, aliene, remise, release, convey, and confirm unto the said 
part of the second part, and to heirs and assigns forever, all 
ijiere describe carefully the land or premises granted, substantially as 
directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in anywise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 
And also, all the estate, right, title, interest, property, 

possession, claim, and demand whatsoever, as well in law as in equity, of the 
said part of the first part, of, in, or to the above described premises, and 
every part and parcel thereof, with the appurtenances. 

To have and to hold all and singular the above-mentioned and described 
premises, together with the appurtenances, unto the said part of the second 
part, heirs and assigns, to own proper use, benefit, and 

behoof forever. 

And the said for heirs, executors, and administra¬ 

tors do covenant, grant, and agree, to and with the said part of the 
second part, heirs and assigns, that the said at the time 

of the sealing and delivery of these presents, lawfully seized in 

of a good absolute and indefeasible estate of inheritance in fee- 
simple, of and in all and singular the above granted, bargained, and de¬ 
scribed premises, with the appurtenances, and ha good right, full power, 
and lawful authority to grant, bargain, sell, and convey the same in manner 
and form aforesaid. 

And that the said part of the second part, heirs and assigns, 

shall and may at all times hereafter, peaceably and quietly have, hold, use, 
occupy, possess, and enjoy, the above granted premises, and every part and 
parcel thereof, with the appurtenances, without any let, suit, trouble, moles¬ 
tation, eviction, or disturbance, of the said part of the first part, 
heirs or assigns, or of any other person or persons lawfully claiming, or to 
claim the same. 

And that the same now are free, clear, discharged, and unincumbered of 
and from all former and other grants, titles, charges, estates, judgments, 
taxes, assessments, and incumbrances of what nature or kind soever. 

And also, that the said part of the first part, and heirs, and all 


478 


DEEDS CONVEYING LAND. 


and every other person or persons whomsoever lawfully or equitably deriving 
any estate, right, title, or interest, of, in, or to the hereinbefore granted 
premises, by, from, under, or in trust for them, shall and will at 

any time or times hereafter, upon the reasonable request, and at the proper 
costs and charges in the law, of the said part of the second part, 
heirs and assigns ; make, do, and execute, or cause or procure to be made, 
done, or executed, all and every such further and other lawful and reasonable 
acts, conveyances, and assurances in the law for the better and more 
effectually vesting and confirming the premises hereby intended to be 
granted, in and to the said part of the second part, heirs and assigns 
forever, as by the said part of the second part, heirs or assigns, or 

counsel learned in the law, shall be reasonably devised, advised, 
or required. And the said heirs, the above described 

and hereby granted and released premises, and every part and parcel thereof, 
with the appurtenances, unto the said part of the second part, heirs 

and assigns, against the said part of the first part, and heirs, and 

against all and every person and persons whomsoever, lawfully claiming or 
to claim the same, shall and will warrant, and by these presents forever 
defend. 

In "Witness Whereof, the said part of the first part ha hereunto 
set hand and seal the day and year first above written. 

( Signatures .) (Seals.) 

Signed, Sealed, and Delivered in the Presence of 


State of 

County. 

Be it Remembered, That on this day of in the 

year one thousand eight hundred and before me 

personally appeared who, I am satisfied, the 

grantor in the within Indenture named ; and I having first made known to 
the contents thereof, did acknowledge that 

signed, sealed, and delivered the same as voluntary act and 

deed for the uses and purposes therein expressed. 

And the said being by me privately examined, separate 

and apart from said husband did further acknowledge that 

signed, sealed, and delivered the same as voluntary act 

and deed freely, and without any fear, threats, or compulsion of or from 
said husband. 

( 127 .) 

A Brief Warranty Deed in use in Ohio. 

To all people to whom these Presents shall come, Greeting : Know 

ye, that I (or we), (name, residence, and occupation of grantor) for the 

consideration of received in full satisfaction of 



FORMS OF DEEDS. 


479 

(; name , residence, and occupation of grantee) do give, grant, bargain, sell, and 
confirm unto the said the following described tract or 

lot of land, situate in the of in the County of 

ancT State of ( here describe carefully the land or 

preinises granted, as directed in Form 107) be the same more or less, but 
subject to all legal highways. 

To have and to hold the above granted and bargained premises, with 
the appurtenances thereto belonging, unto the said {name of 

grantee) heirs and assigns forever, to {him, or them) and {his, or their) own 
proper use and behoof. And I {or we) the said {?iame of grantor, or 

grantors) do for heirs, executors, and administrators, covenant 

with the said heirs and assigns, that at and until the 

ensealing of these presents, well seized of the premises, as a 

good and indefeasible estate in fee-simple, and have good right to bargain 
and sell the same in manner and form as above written, and that the same 
be free from all encumbrance whatsoever. And furthermore, 
the said do by these presents bind heirs forever 

to warrant and defend the above granted and bargained premises to 
the said heirs and assigns, against all lawful claims and 

demands whatsoever. And 1, (wife of) the said do hereby 

remise, release, and forever quitclaim unto the said heirs and 

assigns, all my right and title of dower in the above described premises. 

In Witness Whereof, have hereunto set hand and seal 

the day of in the year of our Lord one 

thousand eight hundred and 

{Signatures.) {Seals.) 

Signed, Sealed, and Delivered in the Presence of 


The State of Ohio, 
County of 


ss. 


187 


Before me, a within and for said County, personally 

appeared the said and acknowledged that did 

sign and seal the foregoing instrument, and that the same is free 

act and deed. 

I further Certify that I did examine the said separate 

and apart from her said husband, and did then and there make known 
to her the contents of the foregoing instrument, and upon that examina¬ 
tion she declared that she did voluntarily sign, seal, and acknowledge the 
same, and that she was still satisfied therewith. 

In Testimony Whereof, I hereunto set my hand and official seal this 
day of A.D. 18 


{Signature?) 


480 


DEEDS CONVEYING LAND. 


( 128 .) 


Brief Warranty Deed in use in Minnesota. 


This Indenture, Made this 
one thousand eight hundred and 
of the grantor ) of the County of 
part of the first part, and 
of the County of 
part of the second part, 


day of A.D. 

between {name and occupation 
and State of 

{?iame and occupation of the grantee') 
and State of 


Witnesseth, That the said part of the first part, in consideration of 
the sum of dollars, to in hand paid by the 

part of the second part, the receipt whereof is hereby acknowledged, do 
by these presents grant, bargain, sell, and convey, to the said part of the 
second part, heirs and assigns forever, all the following described piece 
or parcel of land, lying and being in the County of 
and State of Minnesota, to wit {here describe carefully the land or premises 
granted ,, as directed in Form 107). 

To Have and to Hold the Same, Together with all the heredita¬ 
ments and appurtenances thereunto in any wise appertaining. And the said 
part of the first part, do covenant with the said 
part of the second part heirs and assigns, as follows : That 

lawfully seized of said premises, in fee-simple, and that 
good right and power to grant and convey the same ; that the same free 
from all incumbrances, and that the said part of the second part, 
heirs and assigns, shall quietly enjoy and possess the same ; and that the 
said part of the first part will warrant and defend the title to the same 
against all lawful claims. 

In Testimony Whereof, The said part of the first part hereunto set 
hand and seal , the day and year above written. 

{Signatures.) {Seals.) 

Signed ,’ Sealed ’ and Delivered in Presence of 


State of Minnesota, 

County of 

On this day of A. D. 18 , before me the 

undersigned personally came to me personally known 

to be the identical individual described in, and who executed the foregoing 
deed, and acknowledged that executed the same freely and volim* 

tarily, for the uses and purposes therein expressed. 



{Signature.) 


FORMS OF DEEDS. 


481 


( 129 .) 

Warranty (or Guaranty) Deed in use in Louisiana. 

STATE OF LOUISIANA, 

Parish and City of New Orleans. 

Be it Known, That on this day of 

in the year of our Lord one thousand eight hundred and and 

of the Independence of the United States of America, the one hundred and 
, before me, , a Notary Public in 

and for the Parish of Orleans, State of Louisiana, duly commissioned and 
qualified, and in the presence of the witnesses hereinafter named and under¬ 
signed, personally came and appeared {name, residence, and occupation of 
grantor or grantors) who declared that for the consideration and on the terms 
and conditions hereinafter expressed {he or they) by these presents grant, 
bargain, sell, convey, transfer, assign, and set over, with a full guarantee 
against all troubles, debts, mortgages, liens, evictions, alienations, or other 
incumbrances of every nature and kind whatsoever, unto {name, residence, 
and occupation of grantee or grantees) here present heirs and assigns, 
and acknowledging delivery and possession thereof. 

Lot of land, together with the improvements 
thereon, and all rights, ways, privileges, and appurtenances thereunto belong¬ 
ing or in any wise appertaining, situate in the 

{here describe the land or premisesgranted,fully and accurately and substan¬ 
tially, as directed in Fomn 107.) 

To Have and to Hold the said property and appurtenances unto the 
said purchaser , heirs and assigns forever. 

And the said vendor hereby bind and heirs forever 

to warrant and defend the property and appurtenances herein conveyed, 
against all legal claims and demands whatever. 

The said vendor moreover transfer unto the said purchaser all the 
rights and actions of warranty to which or may be entitled, 

against all the former proprietors of the property herein conveyed, subro¬ 
gating said purchaser to the said right and actions to be by 
enjoyed and exercised in the same manner as they might have been by the 
said vendor. 

This Sale is Made and Accepted for and in consideration of the price 
and sum of 

And in order to secure the punctual payment of the said promissory 
note , at maturity, as well as of all interest to accrue thereon, and in order, 
furthermore, to secure the payment and reimbursement of any and all law¬ 
yers’ fees that may be expended or incurred in the event of suit being insti¬ 
tuted to enforce the payment of said note in principal 

or interest, or any part thereof (which lawyers’ fees, however, are fixed at 
five per cent, on the amount so in suit, and said purchaser consent and 
31 


4 82 


DEEDS CONVEYING LAND. 


agree to pay and allow the same), the said purchaser hereby specially 
mortgage , affect , and hypothecate the herein described and conveyed 
property unto and in favor of the said vendor , as well as of any and all 
future owner or owners of the said note ; promising 

and binding and heirs not to alienate, deteriorate, 

nor encumber the said property to the prejudice of this mortgage, nor of the 
special lien and vendor’s privilege which the said vendor hereby retain 
on said property until the full and final payment of said note. 

And the said declared that do 

by these presents, bind and obligate to cause all and singu¬ 

lar the buildings and improvements on the herein described and conveyed 
property to be insured and kept insured against the risk of fire, by one 
of the insurance companies of this city, in the sum of 
dollars, until the full and final payment of the afore described , 

and to transfer and deliver unto the said vendor or any and all future 
owner or owners of the said the policy or policies of 

the said insurance or insurances ; in default whereof, said vendor or any 
and all future owner or holders of said is and are 

hereby authorized to cause such insurance or insurances to be made and 
effected at the cost, charge, and expense of the said purchaser . But this 
clause shall not be construed as obligatory on such holder or holders, or as 
making them liable for any loss, damage, or injury which may result from 
the non-insurance of said buildings. 

According to the several certificates of the Recorder of Mortgages and 
the Register of Conveyances in and for this City and Parish, bearing even 
date herewith, and hereto annexed for reference, it appears that the said 
vendor has not alienated the herein described and conveyed property, 
and that the same is free from all mortgages or other incumbrances in his 
name. 

And now to these Presents, personally came and appeared, Madam 

who after having taken cognizance of the 
foregoing act, which I, the said Notary, carefully read and explained to 
declared and said that approve and ratif 

the same, and that it is wish and intention to release in favor of 

the said purchaser , the property herein described, from the matrimonial, 
dotal, paraphernal, and other rights, and from any claims, mortgages, or 
privileges to which may be entitled, whether by virtue of marriage 

with said husband, or otherwise. 

Whereupon, I, the said Notary, did inform the said 
apart, and out of the presence and hearing of her husband, and before re¬ 
ceiving her signature hereto, that by the laws of this State, the wife has a 
legal mortgage on the property of her husband: First. For the restitution 
of her dowry, and for the reinvestment of the dotal property sold by her 
husband, and which she brought in marriage, reckoning from the celebra- 


FORMS OF DEEDS. 


483 

tion of the marriage. Secondly. For the restitution and reinvestment of the 
dotal property by her acquired since marriage, whether by succession or 
donation, from the day the succession was opened or the donation perfected. 
Thirdly. For nuptial presents. Fourthly. For debts by her contracted 
with her husband. And Fifthly. For the amount of her paraphernal prop¬ 
erty alienated by her and received by her husband, or otherwise disposed of 
for his individual interest: That in making her intended renunciations she 
would deprive herself irrevocably and forever of all the rights of reclamation 
against the property herein described, whether under mortgage privilege or 
otherwise. 

And the said did thereupon declare unto me, Notary, 

that she was fully aware of and acquainted with the nature and extent of the 
matrimonial, dotal, piraphernal, and other rights and privileges thus secured 
to her by the law on the property of her said husband, and that she never¬ 
theless did persist in her intention of renouncing, and does formally re¬ 
nounce, not only all the rights, claims, and privileges hereinbefore enumerated 
and described, but all others of any nature and kind whatever to which she 
is, or may be entitled, by any laws now or heretofore in force in the State of 
Louisiana. 

And the said being now present, aiding and authorizing 

the said in the execution of these presents, the said 

did again declare that did and do hereby make a formal renunciation 
and relinquishment of all said matrimonial, dotal, paraphernal, and 

other rights, claims, and privileges, in favor of said purchaser , binding 

and heirs at all times to sustain and acknowledge the validity 

of this renunciation. 

Thus Done and Passed, in my office, at New Orleans aforesaid, in the 
presence of and witnesses, 

both of this city, who hereunto sign their names with the parties, and me, 
the said Notary, the day and date aforesaid. 

( Signatures .) (Seals.) 

( 130 .) 

Deed of Grant and Quitclaim of Property and Mining 
Rights, in use in California and other 
Mining States. 

This Indenture, Made the day of 

in the year of our Lord one thousand eight hundred and between 

(name, residence, and occupation of the grantor ) the party of the first part, 
and (flame, residence, and occupation of the grantee) the part of the second 
part, Witnesseth, that the said part of the first part, for and in considera¬ 
tion of the sum ot dollars, of the 

United States of America, to in hand paid by the said part 

of the second part, the receipt whereof is hereby acknowledged, ha 


484 DEEDS CONVEYING LAND. 

granted, bargained, sold, remised, released, and forever quitclaimed, and by 
these presents do grant, bargain, sell, remise, release, and forever quit¬ 
claim unto the said part of the second part and to heirs and 

assigns (here describe carefully the land or premises granted\ as directed in 
Form 107). * 

Together with all the dips, spurs, and angles, and also all the metals, 
ores, gold, and silver-bearing quartz, rock, and earth therein; and all the 
rights, privileges, and franchises thereto incident, appendant, and appur¬ 
tenant, or therewith usually had and enjoyed ; and, also, all and singular the 
tenements, hereditaments, and appurtenances thereto belonging, or in any 
wise appertaining, and the rents, issues, and profits thereof; and, also, all 
the estate, right, title, interest, property, possession, claim, and demand 
whatsoever, as well in law as in equity, of the said part of the first part, 
of, in, or to the said premises, and every part and parcel thereof, with the 
appurtenances. 

To Have and to Hold, all and singular the said premises, together 
with the appurtenances and privileges thereto incident, unto the said part 
of the second part, heirs and assigns forever. 

In Witness Whereof, the said part of the first part, ha hereunto 
set hand and seal the day and year first above written. 

(Signatures.) (Seals.) 

Signed, Sealed , and Delivered in the Presence of 


( 131 .) 

Warranty Deed made under the Statute of Illinois. 

This Indenture Witnesseth, That the grantor , (na?ne and occupation 
of the grantor) of the (residence of the grantor) in the County of 

and State of for and in consideration of the sum of 

dollars, in hand paid, Convey and Warrant to (name and occupation 

of grantee) of the (residence of grantee) County of and State 

of the following described real estate, to wit, (here describe 

caref illy the land or pre?nises granted, as directed in Form 107) situated in 
the County of in the State of Illinois, hereby releasing and 

waiving all rights under and by virtue of the Homestead Exemption Laws 
of this State. 

Dated this day of A.D. 18 . 

(. Signatures.) (Seals.) 


State of 
County of 

I, in and for said County, in the State aforesaid, do hereby 

certify, that personally known to me to be the same person 

whose name subscribed to the foregoing instrument, appeared 

before me this day in person, and acknowledged that he signed, sealed, 
and delivered the said instrument as free and voluntary act, for the uses 



FORMS OF DEEDS. 


485 

and purposes therein set forth, including the release and waiver of the right 
of homestead. 

Given under my hand and seal, this day of 18 . 

( Signature .) 


( 132 .) 

West Virginia Statutory Deed, conveying Grantor’s entire 

Interest. 

This Deed, Made the day of in the year between 

(here insert names of parties') 

Witnesseth, That, in consideration of ( here state the consideration ), the 
said doth grant unto the said all, etc. ( here describe the 

property and insert covenants, or any other provisions). 

Witness the following signature and seal. 

{Signature) (Seal.) 


Form of Acknowledgment. 

State of 
County of 

I, a (official designation) of said county, do certify that whose 

name is signed to the writing above (or hereto annexed) bearing date on the 
day of , has this day acknowledged the same before me, in 

my said 

Given under my hand (and official seal, if one is required) this 
day of 

(Seal.) (Signature and title) 


to wit 


Form of Acknowledgment by Married Woman. 

State of 
County of 

I, a (official designation) of said county, do certify that 
the wife of whose names are signed to the writing above 

(or hereto annexed) bearing date on the day of 

personally appeared before me, in the county aforesaid, and being examined 
by me privily and apart from her husband, and having the said writing 
fully explained to her, she, the said acknowledged the said 

writing to be her act, and declared that she had willingly executed the same, 
and does not wish to retract it. 

Given under my hand (andofficial seal, when one is required), this 
day of 


| to wit: 


(Signature and title) 


486 


DEEDS CONVEYING LAND. 


(132a.) 

Warranty Deed under Statute of Maryland. 

This Deed, Made this day of in the year 

by me ( name of grantor) 

Witnesseth., That, in consideration of I, the said 

do grant unto all that ( description of property). And I, the said 

covenant that I will warrant generally the property hereby con¬ 
veyed, and that the said shall quietly enjoy the same. 

Witness my hand and seal. 

Test. ( Signature .) {Seal.) 

State of Maryland, 

County of 

I hereby certify that on this day of , in the year , 

before the subscriber, ( here give title of officer taking acknowledgment ), per 
sonally appeared , and acknowledged the foregoing 

deed to be his act. 

{Signature and title.) 

(132b.) 

Warranty Deed in use in South Carolina. 

THE STATE OF SOUTH CAROLINA. 

Know all Men by these Presents, That I, A. B., of in 

the State aforesaid, have granted, bargained, sold, and released, and by these 
presents do grant, bargain, sell, and release unto C. D., of all that 

(here describe the pre?nises) 

Together with all and singular the rights, members, hereditaments, and 
appurtenances to the said premises belonging, or in any wise incident or 
appertaining. 

To Have and to Hold all and singular the premises before mentioned 
unto the said C. D., his heirs and assigns forever. And I do hereby bind 
myself, my heirs, executors, and administrators, to warrant and forever 
defend all and singular the said premises unto the said C. D., his heirs and 
assigns, against myself and my heirs, and against every person whomsoever 
lawfully claiming or to claim the same or any part thereof. 

Witness my hand and seal this day of in the year 

of our Lord and in the year of the independence of the 

United States of America. 

{Signature.) [l.s.] 

Signed , Sealed\ a?id Delivered in the presence of 

The State of South Carolina, > 

County. j 

Personally appeared before me, and made oath that saw the 

within named sign, seal, and as act and deed, deliver the within 
written deed; and that with witnessed the execution thereof. 

Sworn to before me, this day of 18 . 



{Signature?) 


FORMS OF DEEDS. 


487 


The State of South Carolina, 
County. 


I, do hereby certify unto all whom it may concern, that 

Mrs. wife of the within named did this day 

appear before me, and upon being privately and separately examined by me, 
did declare that she does freely, voluntarily, and without any manner of 
compulsion, dread, or fear of any person or persons whomsoever, renounce, 
release, and forever relinquish unto the within named heirs 

and assigns, all her interest and estate, and also all her right and claim of 
dower of, in, or to all and singular the premises within mentioned and 
released. 

Given under my hand and seal, this day of 

Anno Domini 18 . 

( Signature .) 


( 133 .) 


Brief Warranty Deed in use in California. 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and between 

( name, residence, a?id occupation of grantor or grantors ), part of the 
first part, and (name, residence, and occupation of the grantee or 

grantees ), the part of the second part, witnesseth, that the said part of 
the first part, for and in consideration of the sum of dollars 

of the United States of America, to in hand paid by the said 

part of the second part, the receipt whereof is hereby acknowledged, 
do by these presents, grant, bargain, sell, convey, and confirm unto 

the said part of the second part, and to heirs and assigns, forever 

(here describe carefully the land or premises granted, substantially as 
directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in any wise appertaining, and the rents, 
issues, and profits thereof. 

To Have and to Hold all and singular the above mentioned and 
described premises, together with the appurtenances, unto the said part 
of the second part, and to heirs and assigns forever. And the 

said part of the first part, and heirs, the said premises, in the 

quiet and peaceable possession of the said part of the second part, 
heirs and assigns, against the said part of the first part, and heirs, 
and against all and every person and persons whomsoever, lawfully claiming 
or to claim the same, shall and will warrant, and by these presents forever 
defend. 


In Witness Whereof, the said part of the first part ha hereunto set 
hand and seal the day and year first above written. 

(Sigtiatures.) (Seals.) 

Signed, Sealed, and Delivered in the Presence of 


488 


DEEDS CONVEYING LAND. 


( 134 .) 

Trust Deed, by way of Mortgage, in use in Virginia and 
West Virginia. 

This Deed, made this day of in the year 18 , 

between . (: name , residence , and occupation of grantor or grantors) 

part of the first part, and (name, residence, and occupation of the 

grantee or grantees) part of the second part, witnesseth : That the said 
part of the first part do grant unto the said part of the second part, 
the following property, to wit, (here describe carefully the land 

or premises granted, as directed in Form 107). 

In Trust to secure to of the the payment of the 

sum of in the event that default shall be made in the payment 

of either of the above-mentioned as they become due and payable, 

then the trustees, or either of them, on being required to do so by 
executors, administrators, or assigns, shall sell the property hereby con¬ 
veyed. And it is covenanted and agreed between the parties aforesaid, that 
in case of a sale the same shall be made after first advertising the time, 
place, and terms thereof, for days, in some newspaper published in 

the , and upon the following terms, to wit: for cash as to so 

much of the proceeds as may be necessary to defray the expenses of execut¬ 
ing this trust, the fees for drawing and recording this deed, if then unpaid, 
and to discharge the amount of money then payable upon the said 
and if at the time of such sale any of the said shall not have 

become due and payable, and the purchase money be sufficient, such part or 
parts of the said purchase money as will be sufficient to pay off and dis¬ 
charge such remaining shall be made payable at such time or 

times as the said remaining will become due ; the payment of 

which part or parts shall be properly secured ; and in case the net proceeds 
of sale shall be insufficient to pay off all of the said in full, then 

the same shall be applied towards the payment of the said in 

the order of their maturity, intending hereby to create a priority in favor of 
each of said over any other which may become 

due and payable subsequent thereto; and if there be any residue of said 
purchase money, the same shall be made payable at such time, and secured 
in such manner as the said part of the first part executors, adminis¬ 
trators, or assigns shall prescribe and direct, or in case of failure to give 
such direction, at such time and in such manner as the said Trustees, or 
either of them, shall think fit. The said part of the first part covenant to 
pay all taxes, assessments, dues, and charges upon the said property hereby 
conveyed, so long as or heirs or assigns shall hold the 

same, and hereby waive the benefit of Homestead Exemption 

as to the debt secured by this deed. 

If no default shall be made in the payment of either of the above-men¬ 
tioned then upon the request of the part of the first part, a 


FORMS OF DEEDS. 


489 


good and sufficient deed of release shall be executed to 
at own proper costs and charges. 

Witness the following signature and seal . 

{Signatures.) (Seats.) 

State of Virginia. 


of to wit: 

I, for the aforesaid, in the State of 

Virginia, do certify that whose name signed to 

the writing above, bearing date on the day of 

18 , ha acknowledged the same before me in my aforesaid. 

Given under my hand, this day of 18 . 

Memo. —To be acknowledged before a Justice or Notary Public. 


State of Virginia, 

of to wit: 

for the of in the State of Virginia, do certify that 

the wife of whose names are signed to the 

writing above, bearing date on the day of 

18 , personally appeared before in the 

aforesaid, and being examined by privily and apart from her 

husband, and having the writing aforesaid fully explained to her, she, the 
said acknowledged the said writing to be her act, and 

declared that she had willingly executed the same, and does not wish to 
retract it. Given under hand this day of 18 . 

Memo. —Before two Justices or a Notary Public. 


( 135 .) 

Deed of Trust to Secure a Debt, Payable in G-old Coin, in 
Use in California. 

This Deed of Trust, made this day of 

A. D. eighteen hundred between (name, residence, 

and occupation of the debtor and grantor) of the first part, 

and (name, residence, and occupatio?i of the grantee or grantees, trustee 

or trustees) of part of the second part, and (name, 

residence, and occupation of creditor, for whose security the trust is created) 
of the third part, witnesseth: 

Whereas, the said ha borrowed and received of the 

said in gold coin of the United States, the sum of 

dollars, and ha agreed to repay the same on the 
day of A. D. eighteen hundred and to the 

in like gold coin, with interest, according to the terms of a 
certain promissory note, of even date herewith, executed and delivered there¬ 
for by the said # 

Now this Indenture Witnesseth, That the said part of the first part, 


DEEDS CONVEYING LAND. 


490 

in consideration of the aforesaid indebtedness to the and 

of one dollar to in hand paid by the part of the second part, 

the receipt whereof is hereby acknowledged, and for the purpose of securing 
the payment of said promissory note, and of any sum or sums of money, with 
interest thereon, that may be paid or advanced by, or may otherwise be due 
to the part of the second or third part, under the provisions of this in¬ 
strument, do by these presents grant, bargain, sell, convey, and confirm 
unto the part of the second part in joint tenancy, and to the survivor of 
them, their successors and assigns, the piece or parcel of land situate in the 
, county of , State of , 

described as follows : (here describe carefully the land or premises 

conveyed substantially as directed in Forjn 107.) 

And also, all the estate and interest, homestead, or other claim or demand, 
as well in law as in equity, which the said part of the first part now ha 
or may hereafter acquire of, in, and to said premises, with the appurte¬ 
nances ; 

To have and to hold the same to the parties of the second part, as joint 
tenants (and not as tenants in common), with right of survivorship as such, 
and to their successors and assigns (said parties of the second part and their 
successors being hereby expressly authorized to convey, subject to the 
trusts herein expressed, the lands above described), upon the trusts and con¬ 
fidences hereinafter expressed, to wit: 

First, During the continuance of these trusts, the party of the third part 
and the parties of the second part, their successors and assigns, are hereby 
authorized to pay, without previous notice, all taxes, assessments, and liens 
now subsisting, or which may hereafter be imposed by national, state, county, 
city, or other authority, upon said premises, and on the money so borrowed 
as aforesaid, to whomsoever assessed, and all or any incumbrances now sub¬ 
sisting, or that may hereafter subsist thereon, which may in their judgment 
affect said premises or these trusts, at such time as in their judgment they 
may deem best; or in their discretion, for the benefit and at the expense of 
said part of the first part, to contest the payment of any such taxes, assess¬ 
ments, liens, or incumbrances, or defend any suit or proceeding instituted 
for the enforcement thereof; and in like manner to prosecute or defend any 
suit or proceeding that they may consider proper to protect the title to said 
premises, and these trusts shall be and continue as security to the party of 
the third part, and their assigns, for the repayment, in gold coin of the 
United States, of the moneys so borrowed by the and the 

interest thereon, and of all amounts so paid out, and costs 

and expenses incurred as aforesaid, whether paid by the part of the second 
or third part, with interest on such payments at the rate of per 

cent, per month until final repayment. 

Secondly, In case the said shall well and truly pay, or 

cause to be paid at maturity, in gold coin as aforesaid, all sums of money so 
borrowed as aforesaid, and the interest thereon, and shall 


FORMS OF DEEDS. 


491 

upon demand repay or deposit all other moneys secured, or intended to be 
secured hereby, and also the reasonable expenses of this trust, then the par¬ 
ties of the second part, the survivor of them, their successors and assigns, 
shall reconvey all the estate in the premises aforesaid to them by this instru¬ 
ment granted unto heirs and assigns, at request 

and cost. 

Thirdly, If default shall be made in the payment of any of said sums 
of principal or interest, when due, in the manner stipulated in said promissory 
note, or in the reimbursement of any amounts herein provided to be paid, or 
of any interest thereon, then the said parties of the second part, or the sur¬ 
vivor of them, their successors or assigns, on application of the party of the 
third part, or their assigns, shall sell the above granted premises, or such 
part thereof as in their discretion they shall find it necessary to sell in order 
to accomplish the objects of these trusts, in the manner following, namely: 

They shall first publish the time and place of such sale, with a descrip¬ 
tion of the property to be sold, at least a week for 

weeks, in some newspaper published in the county of 

and may from time to time postpone such sale by 
publication; and, on the day of sale so advertised, or to which such sale 
may be postponed, they may sell the property so advertised, or any portion 
thereof, at public auction, in any county where any part of said property may 
be situated, to the highest cash bidder; and the holder or holders of said 
promissory note, their agent or assigns, may bid and 

purchase at such sale. 

And the part of the second part or assigns, shall 

establish as one of the conditions of such sale, that all bids and payments 
for said property shall be made in like gold coin as aforesaid, and upon such 
sale shall make, execute, and after due payment made, shall 

deliver to the purchaser or purchasers, his or their heirs and assigns, a deed 
or deeds of grant, bargain, and sale, of the above granted premises, and out 
of the proceeds thereof shall pay: 

First, The expenses thereof, together with the reasonable expenses of 
this trust, including counsel fees of dollars, in gold coin, 

which shall become due upon any default made by the 
in any of the payments aforesaid. 

Second, All sums which may have been paid by the said 

or the part of the second part, successors or assigns, 

or the holders of the note aforesaid, and not reimbursed, and which may 
then be due, whether paid on account of incumbrances or insurance, as afore¬ 
said, or in the performance of any of the trusts herein created, and with 
whatever interest may have accrued thereon; next the amount due and 
unpaid on said promissory note, with whatever interest may have accrued 
thereon ; and lastly, the balance or surplus of such proceeds, if any, to said 
heirs or assigns. 

And in the event of a sale of said premises, or any part thereof, 


DEEDS CONVEYING LAND. 


49 2 

and the execution of a deed or deeds therefor, under these trusts, then the 
recitals therein of default and publication shall be conclusive proof of such 
default and of the due publication of such notice; and any such deed or 
deeds, with such recitals therein, shall be effectual and conclusive against 
the said part of the first part, heirs or assigns, and all other persons; 
and the receipt for the purchase-money contained in any deeds executed 
to the purchaser, as aforesaid, shall be a sufficient discharge to such pur¬ 
chaser from all obligation to see to the proper application of the purchase- 
money, according to the trusts aforesaid. 

In Witness Whereof, the said part of the first part ha hereunto set 
hand and seal the day and year first above written. 

( Signatures .) {Seals.) 

Duly Signed , Sealed,\ and Delivered in the presence of 

( 136 .) 

Trust Deed to Secure Payment of a Promissory Note, in 

use in Colorado. 

This Indenture, Made this day of in 

the year of our Lord one thousand eight hundred and 

between (name and occupation of grantor or grantors), of the county 

of (residence) and State of Colorado, part of the first part; and 

(name and occupation of grantee or gratitees) of the county of 
(residence) and State of Colorado, party of the second part, witnesseth, 

That Whereas, The said part of the second part, ha executed 

promissory note bearing even date herewith, for the 
sum of dollars, payable to the order of 

with interest thereon, from until 

paid, at the rate of per cent, per payable or to 

be counted as principal. 

And whereas, the said part of the first part desirous of secur¬ 

ing not only the prompt payment of said promissory note and the interest 
that may accrue thereon, in whose hands soever the same may be. 

Now therefore, the said part of the first, in consideration of the prem¬ 
ises and for the purpose aforesaid, and in the further consideration of one 
dollar to in hand paid by the said party of the second part, 

the receipt whereof is hereby confessed, ha and hereby do grant, bargain, 
sell, and convey unto the said party of the second part, in trust, forever, all 
the lands and premises situate in the county of and State 

of Colorado, known and described as follows, to wit: (here describe 

carefully the land or premises granted, as directed in Form 107.) 

To Have and to Hold the same, together with all and singular the 
tenements, hereditaments, privileges, and appurtenances thereunto belong¬ 
ing, to the said party of the second part, or upon his failure to act, to his 
successor, in trust forever: In trust, nevertheless, that in case of default in 


FORMS OF DEEDS. 


493 


the payment of the said promissory note or any part thereof, 

or the interest thereon, according to the tenor and effect of said note or in 
case of the breach of any of the covenants or agreements herein mentioned, 
then on the application of the legal holder of said promissory note or either 
of them, to sell and dispose of the said premises, and all the right, title, 
benefit, and equity of redemption of the said part of the first part 
heirs and assigns therein, at public auction, at the 
in the county of and State of Colorado, or on said premises, 

or on any part thereof, as may be specified in the notice of such sale, for the 
highest and best price the same will bring in cash, weeks’ 

notice having been previously given of the time and place of such sale, by 
advertisement in any newspaper at that time published in said last-named 
county, and to make, execute, and deliver to the purchaser or purchasers at 
such sale, good and sufficient deed or deeds of conveyance for the premises 
sold ; and out of the proceeds or avails of such sale and the purchase-money 
paid thereon, after first paying all costs of advertising, sale, and conveyance, 
including the reasonable fees and commissions of said party of the second 
part, and all other expenses of this trust, including all moneys advanced for 
insurance, taxes, and other liens or assessments, with interest thereon, at 
per cent, per then to pay the principal of said note 

whether due and payable by the terms thereof or not, and interest due on 
said note up to the time of such sale, rendering the overplus (if any) unto 
the said part of the first part legal representatives or assigns, 

on reasonable request (and it shall not be obligatory upon the purchaser or 
purchasers at any such sale to see to the application of the purchase money); 
which sale or sales so made shall be a perpetual bar, both in law and equity, 
against the said part of the first part, heirs and assigns, and all other 

persons claiming the premises aforesaid, or any part thereof, by, from, 
through, or under said part of the first part, or any of them. 

And in case of any suit or proceeding at law or in equity wherein said 
party of the second part shall be made a party by reason of his trusteeship 
under this deed, he shall be allowed and paid his reasonable costs, charges, 
attorney’s and solicitor’s fees, in such suit or proceeding by said part of 
the first part, and the same shall be a further charge and lien upon said 
premises under this deed, to be paid out of the proceeds of sale thereof, 
as aforesaid, with interest thereon at the rate of per cent 

per if not otherwise paid by said part of the first part. 

And the said party of the second part, or his successor in trust, with or 
without re-advertising, is hereby authorized and empowered to postpone or 
adjourn said sale from time to time, or any length of time, at his discretion; 
and also to sell the said premises en masse or in separate parcels, as he 
may prefer or think best. And the said for 

and heirs, executors, and administrators covenant and agree 

to and with the said party of the second part, and his successor in trust 


494 


DEEDS CONVEYING LAND. 


hereinafter named, that at the time of the ensealing and delivery of these 
presents • well seized of said premises in fee-simple, 

and ha good right, full power, and lawful authority to grant, bargain, and 
sell the same in manner and form as aforesaid; that the same are free and 
clear of all liens and incumbrances whatsoever. 

And the said part of the first part will in due season pay all taxes and 
assessments on said premises ; and at the request of the party of the second 
part will keep all buildings that may at any time be on said premises, during 
the continuance of said indebtedness, insured in such company or companies 
as the holder or holders of said note may from time to time direct; for 
such sum or sums as such company or companies will insure for, not to 
exceed the amount of said indebtedness, except at the option of said part 
of the first part, and will assign, with proper consent of the insurers, the 
policy or policies of insurance to said party of the second part, as further 
security for the indebtedness aforesaid. And in case of the refusal or neglect 
of said part of the first part, or either of them, thus to insure, or assign 
the policies of insurance, or to pay such taxes or assessments, said party of 
the second part, or his successor in trust, or the holder of said note or 
either of them, may procure such insurance, or pay such taxes or assess¬ 
ments, and all moneys thus paid, with interest thereon at 
per cent, per shall become so much additional indebtedness, 

secured by this deed of trust, and to be paid out of the proceeds of sale of 
the lands and premises aforesaid, if not otherwise paid by said part of the 
first part, and the said premises in the quiet and peaceable possession of the 
party of the second part or successor in trust against all 

and every other person lawfully claiming or to claim the whole, or any part 
thereof, the said part of the first part shall and will warrant and forever 
defend. 

And it is stipulated and agreed, that in case of default in any of said pay¬ 
ments of principal or interest, according to the tenor and effect of said prom¬ 
issory note aforesaid, or either of them, or any part thereof, or of a breach 
of any of the covenants or agreements herein by the part of the first part 
executors, administrators, or assigns, then and in that case, 
the whole of said principal sum hereby secured, and the interest thereon to 
the time of sale, may at once, at the option of the legal holder thereof, become 
due and payable, and the said premises be sold in the manner and with the 
same effect as if the said indebtedness had matured. 

And it is further agreed and especially understood that in case of the 
death, resignation, removal, or absence from the of 

or refusal, or failure, or inability of said party of the second 
part to act, then shall be and hereby is appointed and 

made successor in trust of the said party of the second part, and in such 
event the said lands and premises shall become vested in such new trustee 
and all the power and authority by this indenture granted to the said party 
of the second part shall accrue to and be exercised by the said 


FORMS OF DEEDS. 


495 

the same to all intents and purposes as if he had been made the party of 
the second part herein. 

In Witness Whereof, The said part of the first part ha hereunto set 
hand and seal the day and year first above written. 

( Signatures .) (Seals.) 

( Witness .) 


State of Colorado, 
County of 


ss. 


I) in and for said county, in the State aforesaid, do 

hereby certify that personally known to me as the 

person whose name subscribed to the annexed deed, appeared 

before me this day in person and acknowledged that signed, sealed, 

and delivered the said instrument of writing as free and voluntary 

act, for the uses and purposes therein set forth. 

Given under my hand and seal, this 

day of in the year of our Lord one thousand eight hundred 

and 


(Signature) 


( 137 .) 


Deed of G-rant with "Warranty against Claimants through 
the G-rantor, in use in Delaware. 

This Indenture, made the day of in 

the year of our Lord one thousand eight hundred and 
between (name and occupation of grantor), and 

his wife, of the county of . and State of , 

of the first part, and (name and ocaipation of the grantee), of the same 

county and State, of the second part, Witnesseth : that the said parties of 
the first part, for and in consideration of the sum of 

dollars, lawful money of the United States of America, to them well and 
truly paid, by the said party of the second part, at and before the sealing 
and delivery of these presents, the receipt whereof is hereby acknowledged, 
hath granted, bargained, sold, aliened, enfeoffed, released, conveyed, and 
confirmed, and by these presents doth grant, bargain, sell, aliene, enfeoff, 
release, convey, and confirm unto the said and to his 

heirs and assigns, all that lot, piece, or parcel of land, (here describe 
the premises granted as directed in Form 107), Together with all and 
singular the buildings, improvements, ways, woods, waters, water-courses, 
rights, liberties, privileges, hereditaments, and appurtenances whatsoever 
thereunto belonging, or in anywise appertaining, and the reversions and 
remainders, rents, issues, and profits thereof ; and all the estate, right, title, 
interest, property, claim, and demand whatsoever of them, the said parties 
of the first part, in law, equity, or otherwise, howsoever, of, in, and to the 
same, and every part and parcel thereof. 


496 


DEEDS CONVEYING LAND. 


To Have and to Hold the said land, messuage, hereditaments, and prem- 
ises hereby granted or mentioned, or intended so to be, with the appurte¬ 
nances, unto the said , his heirs and assigns, to and 

for the only proper use and behoof of the said , his heirs 

and assigns, forever, and the said ( here insert the names of the 

grantor and his wife), for themselves, their heirs, executors, and adminis¬ 
trators, do by these presents covenant, grant, and agree to and with the said 
, his heirs and assigns, that they, the said , 

and their heirs, all and singular, the hereditaments and premises hereinbe¬ 
fore described and granted or mentioned, or intended so to be, with the 
appurtenances, unto the said , his heirs and assigns, against 

them, the said , their heirs, and against all and every other 

person or persons whomsoever, lawfully claiming or to claim the same or 
any part thereof, through, by, from, or under them, shall and will by these 
presents warrant and forever defend. 

In Witness Whereof, The said have hereunto set 

their hands and seals. Dated the day and year first above written. 

( Signatures .) (Seats.) 

Sealed and Delivered in the Presence of 

$ Received, the day of the date of this indenture, of the 

above named , full satisfaction for the consideration 

money. 

( Signature) 

(Witness at signing) \ mentioned. 

( 138 .) 

Brief Quitclaim Deed in use in Indiana. 

This Indenture Witnesseth, That I (name and occupation of the 

grantor) of county, in the State of 

release and quitclaim to (name and occupatioti of the grantee), of 

county, in the State of for the 

sum of dollars, the following real estate in 

county, in the State of Indiana, to wit: (here describe the land or premises 
granted, carefully, as directed in Form 107). 

In Witness Whereof, The said ha hereunto 

set hand and seal , this day of 18 

(Signatures) (Seals.) 

Executed in the Presence of 


State of Indiana, 

County 


J 


Before me, 
this day of 

of the annexed deed. 

Witness ?ny hand and seal. 


18 


in and for said county, 
, acknowledged the execution 


(Signature) (Seal.) 


FORMS OF DEEDS. 


497 


( 139 .) 

Brief Quitclaim Deed in use in Nebraska. 

Know all Men by these Presents, That I (or we) (name, residence, 
and occupation of grantor or grantors), in consideration of 
dollars, in hand paid, do hereby grant, sell, remise, release, and forever 
quitclaim, unto (name, residence, and occupation of the grantee or grant¬ 
ees), the following described real estate, situate in the county of 
and State of (here describe the land or premises granted, substantially as 

directed in Form 107). 

Together with all the tenements, hereditaments, and appurtenances to 
the same belonging, and all the estate, right, title, interest, dower, claim, or 
demand whatsoever, of the said of, in, and to the same, 

or any part thereof. 

To Have and to Hold the above-described premises, with the appurte¬ 
nances, unto the said and to heirs and assigns for¬ 

ever. 

Signed this day of A. D. eighteen 

hundred and 

(Signatures) (Seals.) 

In Presence of 


The State of Nebraska, 

County. 

On this day of A.D. eighteen hundred and 

, before me, a Notary Public, in and for said county, person¬ 
ally came the above-named who personally known 

to me to be the identical person whose name affixed to the above 
deed as grantor , and acknowledged the instrument to be 

voluntary act and deed. 

Witness my hand and notarial seal the date aforesaid. 

(Signature) 

Notary Public. 



( 140 .) 


Quitclaim Deed in use in Delaware. 

Know all Men by these Presents, That I (name, resi¬ 

dence, and occupation of grantor), for and in consideration of the sum of 
to me in hand paid, or secured to be paid by 
(navte, residence, and occupation of grantee), the receipt whereof is hereby 
acknowledged, have remised, released, and quitclaimed, and by these pres¬ 
ents do remise, release, and quitclaim unto the said 
and to his heirs and assigns, forever, all that lot, piece, or parcel of land, 

(here describe the land or premises quitclaimed, as directed in Form 

107). 

Together with all and singular the hereditaments and appurtenances 
32 


DEEDS CONVEYING LAND. 


498 

thereto belongingor in anywise appertaining, and the reversions, remainders, 
rents, issues, and profits thereof ; and all the estate, right, title, interest, 
claim, or demand whatsoever of me the said either in 

law or equity, of, in, and to the above or aforesaid bargained premises. 

To Have and to Hold the same to the said and to 

his heirs and assigns forever. 

In Witness Whereof, I have hereunto set my hand and seal the 

day of in the year of our Lord eighteen hundred 

1 and 

( Signature .) {Seal.) 

Signed\ Sealed\ and Delivered in the presence of 

( 141 .) 

Quitclaim Deed in use in Alabama. 

Be it Known, That {name and occupatio 7 i of the grantor), of the 
county of State of for and in consideration 

of the sum of dollars, lawful money of the United States 

of America, to in hand paid, by {name, residence, and occupation of the 
grantee,) at or before the sealing and delivery of these presents, the receipt 
whereof is hereby acknowledged, ha remised, released, and forever quit¬ 
claimed, and by these presents do remise, release, and forever quitclaim 
unto the said {the grantee ), in full and actual possession now 

being and to heirs and assigns forever, all and singular the estate, 

right, title, interest, use, trust, property, claim, and demand whatsoever, 
at law as well as in equity, in possession as well as in expectancy of, in, to, 
or out of all and singular the following described premises. That is to say, 

{here describe with sufficient care the land or premises granted , as de¬ 
scribed in Form 107). 

To Have and to Hold the said released premises unto the said (the 
grantee) heirs and assigns, to own proper use, benefit, and behoof for 

ever, so that neither the said {the grantor ), heirs or assigns, nor any other 
person or persons in trust for or in name or names, or 

in the name, right, or stead of any of them, shall or will, can or may, by 
any ways or means whatever, hereafter have, claim, challenge, or demand 
any right, title, interest, or estate, of, in, to, or out of the said premises above 
described and hereby released, but that the said 

heirs and assigns, each and every of them, from all estate, right, title, interest, 
property, claim, and demand whatsoever of, in, to, or out of the said premi¬ 
ses, or any part thereof, are, is, and shall be, by these presents, forever 
excluded and debarred. 

In Witness Whereof, The said ha hereunto set 

hand and seal this day of in the year of 

our Lord one thousand eight hundred and 

(Signature.) (Seal.) 

Sealed\ Signed, and Delivered in the Presence of 


FORMS OF DEEDS . 


499 


i 


State of Alabama, ) 

[• ss. 

County.) 

I, hereby certify that whose name 

signed to the foregoing conveyance, and who known to me, acknowl¬ 

edged before me, on this day, that being informed of the contents of the con¬ 
veyance, he executed the same voluntarily on the day the same bears 
date 

Given under my hand and seal, this day of A.D. 18. 


( Signature .) 


( 142 .) 

Warranty Deed in use in New York. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between 

(name, residence , and occupation of the grantor) of the first part, and 
(na?ne, residence , and occupation of the grantee) of the second part, witness¬ 
ed, that the said part of the first part, for and in consideration of the sum 
of lawful money of the United States, to in 

hand paid by the said part of the second part, at or before the ensealing 
and delivery of these presents, the receipt whereof is hereby acknowledged, 
and the said part of the second part, heirs, executors, and 

administrators, forever released and discharged from the same, by these 
presents, ha granted, bargained, sold, aliened, remised, released, conveyed, 
and confirmed, and by these presents do grant, bargain, sell, aliene, 
remise, release, convey, and confirm, unto the said part of the second 
part, and to heirs and assigns forever, all (here describe the premises 

gra 7 ited as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging or in anywise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 
And also all the estate, right, title, interest, property, possession, 

claim, and demand whatsoever, as well in law as in equity, of the said part 
of the first part, of, in, and to the same, and every part and parcel thereof, 
with the appurtenances. 


To Have and to Hold the above granted, bargained, and described 
premises, with the appurtenances, unto the said part of the second part 
heirs and assigns, to their own proper use, benefit, 

and behoof forever. 

And the said for heirs, executors, and 

administrators, do covenant, grant, and agree to and with the 

said part of the second part, heirs and assigns, that the said 

at the time of the sealing and delivery of these 
presents, lawfully seized in of a good, absolute, and 

indefeasible estate of inheritance in fee-simple of and in all and singular 
the above granted and described premises, with the appurtenances 

and ha good right, full power, and lawful authority to 


500 


DEEDS CONVEYING LAND. 


grant, bargain, sell, and convey the same in manner aforesaid: And that the 
said part of the second part, heirs and assigns, shall and may 

at all times hereafter, peaceably and quietly have, hold, use, occupy, possess, 
and enjoy the above granted premises, and every part and parcel thereof, 
with the appurtenances, without any let, suit, trouble, molestation, eviction, 
or disturbance of the said part of the first part, heirs or assigns, 

or of any other person or persons lawfully claiming or to claim the same : 
And that the same now are free, clear, discharged, and unencumbered, of 
and from all former and other grants, titles, charges, estates, judgments, 
taxes, assessments, and encumbrances of what nature or kind soever. 

And also, that the said part of the first part, and heirs, and 

all and every person or persons whomsoever lawfully or equitably deriving 
any estate, right, title, or interest, of, in, or to the hereinbefore granted 
premises, by, from, under, or in trust for them, shall and will, 

at any time or times hereafter, upon the reasonable request, and at the 
proper costs and charges in the law, of the said part of the second part, 
heirs and assigns, make,, do, and execute, or cause to be made, 
done, and executed, all and every such further and other lawful and reason¬ 
able acts, conveyances, and assurances in the law, for the better and more 
effectually vesting and confirming the premises hereby granted or so 
intended to be, in and to the said part of the second part, heirs 

and assigns forever, as by the said part of the second part, heirs or 

assigns, or their counsel learned in the law, shall be reasonably 

advised or required: And the said heirs, the above 

described and hereby granted and released premises, and every part and 
parcel thereof, with the appurtenances, unto the said part of the second 
part, heirs and assigns, against the said part of the first part, 

and heirs, and against all and every person and persons whomso¬ 

ever, lawfully claiming or to claim the same, shall and will warrant and by 
these presents forever defend. 

In Witness Whereof, the said part of the first part hereunto 

set hand and seal the day and year first above written. 

(And ( name of the wife of grantor) signs and seals this deed in token of 
her relinquishment and release to the party of the second part of all her 
right of dower in the premises hereby granted.) 

(Signature of grantor.) (Seal.) 

(Signature of grantor's wife.) (Seal.) 

Sealed and Delivered in the Presence of 


State of 


of 


• ss. 


County of 
On the 

eight hundred and 
to be the individual 
ment, and 


day of in the year one thousand 

before me personally came 
described in, and who executed the foregoing instru^ 
acknowledged that he executed the same. 

(Signature.) 


FORMS OF DEEDS . 


501 


( 143 .) 

Bond for a Deed. 

Know all Men by these Presents, That I, {name of 

(he obligor) of the County of and State of am held and 

firmly bound to ( name of the obligee) of the County of and 

State of in the sum of dollars, to be paid to 

said ( name of obligee) or his executors, administrators, or assigns, to 

the payment whereof I bind myself, my heirs, executors, and administrators, 
firmly by these presents. Sealed with my seal and dated the day of 

A.D. 18 

The Condition of this obligation is that if I the said {nameof 

the obligor) upon payment of dollars, and interest thereon, as 

agreed and promised by said {name of the obligee) agreeably to his 

promissory note, dated 18 , and made payable as follows, to 

wit {here set forth the note. If there be no note froyn the obligee, omit this 
part), shall convey to said {name of the obligee) or his heirs, executors, 
or assigns, forever, the following described real estate, situate, lying, and 
being in the County of and State of to wit ( here 

describe carefully the land or premises granted ’ as directed in Form 107), 
deed or deeds in common form, duly executed and acknowledged, and in the 
meantime shall permit said {na?ne of the obligee) to occupy and improve 
said premises for his own use, then this obligation shall be void, otherwise 
it shall remain in full force. 

{Signature) {Seal) 

Signed, Sealed, a?id Delivered in the Presence of 
State of 
County of 

Be it Remembered, That on this day of 

A.D. 18 , before the undersigned, a Notary Public {or other ?nagistrate), 

within and for the County of aforesaid, personally came 

{name of the obligor) who is personally known to me to be the same person 
whose name is subscribed to the foregoing instrument of writing, as the 
obligor therein, and acknowledged the same to be his free act and deed, for 
the purposes therein mentioned. 

In Testimony Whereof, I have hereunto set my hand and affixed my 
official seal at my office in the day and year first above 

written. 

{Signature) {Seal) 

( 144 .) 

Contract for Sale of Land, with Penal Obligation. 

Articles of Agreement, Made and concluded this day 

of A.D. 18 , between of the County of 



DEEDS CONVEYING LAND. 

of the one part, and of the 

and State of of the other part, 

(name of the party of the first part ) for the considera¬ 
tion hereinafter mentioned, does for himself and for his heirs, covenant and 
agree with the said (name of the party of the second part) and his 

heirs and assigns, by these presents, that he, the said party of the first part, 
shall and will, on or before the day of A.D. 18 , 

at the proper costs and charges of the said party of the first part {or of 
the second part, if that is agreed), his heirs and assigns, by good and lawful 
deed or deeds, well and sufficiently grant, convey, and assure unto the said 
party of the second part, his heirs and assigns, in fee-simple, clear of all 
incumbrances, all that certain tract or parcel of land lying, being, and situate 
in the County of State of as follows, to wit {here 

describe carefully the land or premises granted, as directed in Form 107). 

In Consideration Whereof, The said (here the name of the party 

of the second part), for himself and his heirs, does covenant and agree with 
the said party of the first part, and with his heirs and assigns, by these 
presents, that he, the said party of the second part, and his heirs, or some of 
them, shall and will on the execution and delivery of the said deed or deeds 
as aforesaid, well and truly pay, or cause to be paid, unto the said party of 
the first part, or his heirs and assigns, the sum of dollars, in the 

manner following, to wit {set forth the terms and times of payment as agreed 
on). And upon {set forth the time agreed on) the said party of the first 
part shall give to the said party of the second part possession of the afore¬ 
said premises. 

And for the true performance of all and every the covenants and agree' 
ments aforesaid, each of the _aid parties bindeth himself, his heirs, executors, 
and administrators unto the other, his executors, administrators, and assigns, 
in the penal sum of dollars. 

In Witness Whereof, The said parties have hereunto set their hands 
and seals the day and year first above written. 

{Signatures?) {Seals.) 

Signed , Sealed, and Delivered in Presence of us, 

{If it is intended that this contract should be recorded, as in almost all 
cases it should be, an acknowledgment by both parties shouldfollowy and 
the record should be like that in the 7 iext Form.) 

( 145 .) 

Power of Attorney to Sell Lands. 

Know all Men by these Presents, That I, the undersigned {name 
of the selling party) of the town {or city) of , County of , 

and State of , have this day made, constituted, and appointed, 

and do by these presents make, constitute, and appoint {na?ne of 


502 

and State of 
County of 
as follows : 
The said 


FORMS OF DEEDS. 


503 


attorney) of the town (or city) of , in the County of , 

and State of , my true and lawful attorney, for me 

and in my name to sell and dispose of, absolutely, in fee-simple, the follow¬ 
ing described lot, tract, or parcel of land, or any part thereof, situate, lying, 
and being in the County of and State aforesaid, to wit ( here 

describe caref ully the land or premises granted, as directed in Form 107) 
for such price or sum of money, and to such person or persons as he shall 
think fit and convenient; and also for me and in my name, and as my act 
and deed, to sign, execute, acknowledge, and deliver such deed or deeds, 
and conveyance or conveyances, for the absolute sale and disposal thereof, 
or of any part thereof, with such clause or clauses, covenant or covenants, 
and agreement or agreements, to be therein contained, as my said attorney 
shall think fit and expedient; hereby ratifying and confirming all such deeds, 
conveyances, bargains, and sales which shall at any time hereafter be made 
by said attorney touching or concerning the premises. 

In Testimony Whereof, I have hereunto set my hand and seal, on this 
day of , A.D. 18 

(Signature) (Seal.) 


State of 
County of 

Be it Remembered, That on this day A.D. 18 , 

before the undersigned, a notary public (or other magistrate) within and for 
the County of and State of , personally came 

(the name of the principal ), who is personally known to me to be the same 
person whose name is subscribed to the foregoing instrument of writing, 
and acknowledged the same to be his free act and deed, for the purposes 
therein mentioned. 



In Witness Whereof, I 
official seal, at my office in 


have hereunto set my hand and affixed my 
the day and year first above written. 

(Signature) (Seal) 


State of ) 

V SS. IN THE RECORDER’S OFFICE. 

County of ) 

I, , Clerk of the Circuit Court, and ex-officio Recorder of 

said county (or whoever else is the recording officer ), do hereby certify that 
the within instrument of writing was, on the day of 

A.D. 18 , duly filed for record in this office, and is recorded in the Records 

of this office in Book at page 

In Witness Whereof, I have hereunto set my hand and affixed the seal 

of said court, at this day of 


A. D. 18 


Recorder. 


Per 


Deputy . 


504 


DEEDS CONVEYING LAND. 


( 146 .) 

Trust Deed for the Benefit of a Wife, or some other 

Person. 

This Deed, Made and entered into this day of 

eighteen hundred and by and between {name, resi¬ 

dence, and occupation of the grantor) party of the first part, and 
{the name, residence, and occupation of the trustee ) party of the second part, 
and (name of the wife or any person who is to have the betiefit 

of the trust ) party of the third part, witnesseth : That the said party of the 
first part, in consideration of the sum of dollars, 

to him in hand paid by the said party of the third part, the receipt of which 
is hereby acknowledged, and the further sum of one dollar to him paid by 
the said party of the second part, the receipt of which is hereby also ac¬ 
knowledged, do, by these presents, give, grant, sell, transfer, convey, and 
assign unto the said party of the second part, the following described tract 
or parcel of land, that is to say {here describe the premises carefully, as di¬ 
rected in Form 107). 

To Have and to Hold the Same, With all the rights, privileges, and 
appurtenances thereto belonging, or in any wise appertaining unto him, the 
said party of the second part, his heirs and assigns forever : In trust, how¬ 
ever, to and for the sole and separate use, benefit, and behoof of 

wife of {or the name of the son or daughter, or 
any other person, may be substituted for that of the wife) and the said 
party of the second part hereby covenants and agrees to and with the said 
the party of the third part, that he will suffer and permit 
her {or him), without let or molestation, to have, hold, use, occupy, and 
enjoy the aforesaid premises, with all the rents, issues, profits, and pro¬ 
ceeds arising therefrom, whether from sale or lease, for her own sole use 
and benefit, separate and apart from her said husband, and wholly free from 
his control and interference, debts and liabilities, courtesy, and all other in¬ 
terests whatsoever; and that he will at any and all times hereafter, at the 
request and direction of the said {name of the i>arty of the third fart) 
expressed in writing, signed by her {or him) or by her {or his) authority, 
bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any 
purpose, or otherwise dispose of said premises, or any part thereof, to do 
which full power is hereby given, and will pay over the rents, issues, profits, 
and proceeds thereof to the said party of the third part, and that he will, at 
the death of the said party of the third part, convey or dispose of the said 
premises, or such part thereof as may then be held by him under this deed, 
and all profits and proceeds thereof, in such manner, to such person or per¬ 
sons, and at such time or times, as the said party of the third part shall, by 
her {or his) last will and testament, or any other writing signed by her, or 
by her authority, direct or appoint; and in default of such appointment, that 
he will convey such premises to {here state what it is intended shall be done 
with the property at the death of the party of the third part if he or she die 


FORMS OF DEEDS. 


505 


intestate). And the said party of the third part shall have power at any time 
hereafter, whenever she (or he) shall from any cause deem it necessary or 
expedient, by an instrument in writing under her (or his) hand and seal, and 
by her (or him) acknowledged, to nominate and appoint a trustee or trustees, 
in the place and stead of the party of the second part above named ; which 
trustee or trustees, or the survivor of them, or the heirs of such survivor, 
shall hold the said real estate upon the same trust as above recited; and 
upon the nomination and appointment of such new trustees, the estate in 
trust hereby vested in said party of the second part shall thereby be fully 
transferred and vested in the trustee or trustees so appointed by the said 
party of the third part. And said party of the first part hereby covenants 
to warrant and defend the title to the said real estate against the lawful 
claims of all persons whomsoever, to the said parties of the second and third 
parts, their heirs and assigns. And the said party of the second part cove¬ 
nants faithfully to perform and fulfil the trust herein created. 

In Testimony Whereof, The said parties have hereunto set their 
hands and seals the day and year first above written. 

(Signatures.) (Seals.) 


The State of 
County of 

Be it Remembered, That on the day of 

eighteen hundred and , before me, the undersigned 

came (the persons who execute the instrument) who are personally known 
to me to be the same persons whose names are subscribed to the foregoing 
instrument of writing, as parties thereto, and severally acknowledged the 
same to be their free act and deed for the purposes therein mentioned. 

(Signature.) 



( 147 .) 


Trust Deed to Secure Payment of a Note without Release 
of Homestead or Dower. 


This Deed, Made and entered into this day of 

eighteen hundred and by and between (name and 

occupation of the grantor who is the debtor) of the County of 
State of , party of the first part, and 

(name and occupation of the trustee) of the County of 

State of party of the second part, and (name 

and occupation of the creditor for whose benefit the deed is made) of the 
County of State of party of the 

third part: 

Witnesseth, That the said party of the first part, in consideration of the 
debt and trust hereinafter mentioned and created, and of the sum of one 
dollar to him paid by the said party of the second part, the receipt of which 


DEEDS CONVEYING LAND. 


506 

is hereby acknowledged, does by these presents grant, bargain, and sell, 
convey and confirm unto the said party of the second part, the following 
described real estate, situate, lying and being in the County of 
and State of , to wit (here describe carefully the land or 

premises granted, as described in Form 107.) 

To Have and to Hold The same, with the appurtenances, to the party 
of the second part, and to his successor or successors in this trust, and to 
him and his heirs, and his and their grantees and assigns forever. 

In Trust, However, for the following purposes: Whereas the said party 
of the first part has this day made, executed, and delivered to the said party 
of the third part, his promissory note , of even date herewith, by which he 
promises to pay to the said (name of the creditor) or order, for value 

received, dollars, in {the days or months whe?i the note is 

payable). 

Now Therefore, If the said party of the first part, or any one for him, 
shall well and truly pay off and discharge the debt and interest expressed in 
the said note and every part thereof, when the same becomes due and pay¬ 
able according to the true tenor, date, and effect of said note , then this 
deed shall be void, and the property hereinbefore conveyed shall be released 
at the cost of the said party of the first part; but, should the said first party 
fail or refuse to pay the said debt, or the said interest, or any part thereof, 
when the same or any part thereof shall become due and payable, according 
to the true tenor, date, and effect of said note , then the whole shall be¬ 
come due and payable, and this deed shall remain in force; and the said 
party of the second part, or in case of his absence, death, refusal to act, or 
disability in any wise, the (then) acting sheriff of County, 

, at the request of the legal holder of the said note , may 
proceed to sell the property hereinbefore described, or any part thereof, at 
public vendue, to the highest bidder, at in the 

of County, , for cash, first giving 

days’ public notice of the time, terms, and place of sale, 
and of the property to be sold, by advertisement in some newspaper printed 
and published in the of , and upon such sale 

shall execute and deliver a deed in fee-simple of the property sold to the pur¬ 
chaser or purchasers thereof, and receive the proceeds of said sale ; and any 
statement of facts or recital by the said trustee, in relation to the non-pay¬ 
ment of the money secured to be paid, the advertisement, sale, receipt of the 
money, and the execution of the deed to the purchaser, shall be received as 
primh facie evidence of such fact; and such trustee shall, out of the pro¬ 
ceeds of said sale, pay, first, the cost and expenses of executing this trust, 
including legal compensation to the trustee for his services, and next shall 
apply the proceeds remaining over to the payment of said debt and interest, 
or so much thereof as remains unpaid, and the remainder, if any, shall be 
paid to the said party of the first part, or his legal representatives. And the 
said party of the second part covenants faithfully to perform and fulfil the 


FORMS OF DEEDS. 


50 7 


trust herein created, not being liable or responsible for any mischance occa- 
sioned by others. 

In Witness Whereof, The said parties have hereunto set their hands 
and seals the day and year first above written. 

{Signature of party of the first parti) {Seal) 

{Signature of party of the second part) {Seal) 

{Signature of party of the third part) {Seal.) 

Signed\ Sealed\ and Delivered in Presence of us 


State of 

County of 

Be it Remembered, That on this day of 

A. D. 18 , before the undersigned, a within and 

for the County of and State of , personally 

came {names of all the parties executing the deed) who are personally 

known to me to be the same persons whose names are subscribed to the 
foregoing instrument of writing, as parties thereto, and acknowledged that 
they executed the same for the uses and purposes therein mentioned. 

In Testimony Whereof, I have hereto set my hand and affixed my offi¬ 
cial seal at my office in the day and year first above written. 

{Signature) {Seal) 

( 148 .) 

Deed of Trust to Secure a Debt; Fuller Form, and with 
Release of Dower. 

This Deed, Made and entered into this day of 

eighteen hundred and , by and between 

{name and occzipation of the debtor who is grantor) and {na?ne of the 

wife of the grantor) of {residence) parties of the first part, and 
{name of the grantees who are the trustees) of {residence) parties of the 
second part, and {name, residence , and occupation of the creditor for 

whose benefit the trust is created) of party of the third part, wit¬ 

nessed, that the said parties of the first part, in consideration of the debt 
and trust hereinafter mentioned and created, and of the sum of one dollar to 
them paid by the said parties of the second part, the receipt of which is 
hereby acknowledged, do by these presents grant, bargain, and sell, convey 
and confirm, unto the said parties of the second part, the following described 
real estate, to wit: {here describe carefully the land or premises grantedby 
metes a?id bounds , as directed in Form 107.) 

To Have and to Hold the same, with the appurtenances, to the said par¬ 
ties of the second part, and to the survivor of them, and to their successor 
hereinafter designated, and to the assigns of the said parties of the second 
part, or of said survivor, or of said successor and his heirs forever. 

In Trust, however, for the following purpose : Whereas the said 



DEEDS CONVEYING LAND . 


508 

(name of the grantor) (here describe the debt, and if a promissory note 

is given, describe that, or set forth a copy of if) and has also agreed and 
covenanted to and with the said party of the third part, and his indorsees or 
assignees, to cause all taxes and assessments, general and special, to be paid 
within the times required by law, whenever imposed upon said property, and 
has also further covenanted and agreed to and with said party of the third 
part, his indorsees or assignees, that he will keep the improvements upon 
said property constantly insured in some good and responsible insurance 
office or offices, to be approved by said party of the third part, his indorsees 
or assignees, in a sum not less than dollars, until said 

notes are (or note is) fully paid, and will assign the policy or policies of insur¬ 
ance to said party of the third part, his indorsees or assignees, with full 
power to demand, receive, and collect any and all moneys accruing under 
said insurance, and the same to apply to the payment of said notes and the 
interest that may accrue thereon, unless otherwise paid, when the same 
become due, and has also covenanted and agreed to and with said party o^ 
the third part, his indorsees or assignees, that there shall not, at any tim<* 
while said notes remain unpaid, be any mechanics’ liens filed or taken upon 
the real estate herein described, or upon the buildings which now are, o* 
may hereafter be, erected upon said real estate, and that should said party o* 
the first part fail or neglect to pay said taxes, when the same are by law due 
and payable, or fail or neglect to effect insurance and assign the policy ok 
policies as above provided, or fail or neglect to keep said real estate free 
from mechanics’ liens, the said party of the third part, his indorsees or 
assignees, may, at his option, consider the notes above mentioned and 
described, as having each and all become due and payable, though not then 
due by the tenor and effect thereof, and may require the said parties of the 
second part, or the survivor of them, or their successor in trust, to sell the 
property above described as hereinafter provided, or may pay said taxes, or 
the premium for such insurance, or the amount of said mechanics’ liens, and 
the amount or amounts so paid, together with interest thereon, at the rate of 
(ten) per cent, per annum, shall be taken and considered as a part of the 
amount secured hereby, and to be paid and refunded out of the proceeds of 
sale, should such sale be made, as hereinafter provided. 

Now, if the said notes be well and truly paid, as the same severally 
become due and payable, according to the tenor and effect of said notes, and 
each of them, and if the said covenants and agreements in regard to taxes, 
insurance, and mechanics’ liens be faithfully kept and performed, and all 
moneys paid by said third party, his indorsees or assignees, on account of 
said taxes, insurance, and mechanics’ liens, are refunded, with the interest 
thereon, as above provided, then this deed shall be void, and the property 
hereinbefore conveyed shall be released at the cost of the said parties of the 
first part; but should default be made in the payment of the said notes, or 
either of them, or any part of either of them, or of the interest that may 
accrue thereon, or any part thereof, as the same severally become due and 


FORMS OF DEEDS. 


509 

payable, or if the said parties of the first part fail or neglect to pay said 
taxes, when due and payable, or to insure the buildings on said property, or 
to keep the same free from mechanics’ liens, as provided in the foregoing 
covenants and agreements, or to refund to said party of the third part, his 
indorsees or assignees, the amount paid by him or them for said taxes, insur¬ 
ance, or mechanics’ liens, with interest thereon, as above provided, then this 
deed shall remain in force, and the said parties of the second part, or either 
of them, or the survivor of them, or in the event of the death of both of them, 
or absence from this State, or their refusal to act, or other disqualification for 
the performance of the duties of this trust, then, at the request of the holder 
of said notes, the sheriff of the county of for the time being 

(who shall thereupon become the successor of said trustees, and of the sur¬ 
vivor of them, to the title of said property, and the same become vested in 
him, in trust for the purposes and objects of these presents, with all the 
powers, duties, and obligations thereof), may proceed to sell said described 
property, or any part thereof, at public vendue, to the highest bidder, for 
cash, at the (state the place of sale ) first giving twenty days’ public 

notice of the time, terms, and place of said sale, and the property to be sold, 
by advertisement in some newspaper printed in the English language, and 
published in the county of and upon such sale, the said parties 

of the second part, or either of them, or the survivor of them, or their suc¬ 
cessor in trust, the sheriff of said county, as the case may be, shall execute 
and deliver a deed or deeds, in fee-simple, of the property sold, to the pur¬ 
chaser or purchasers thereof (a recital wherein of the request of the holder 
of said notes that they should proceed to sell, of the publication of said 
notice, and in case of sale by the sheriff of said county, of the happening of 
any or either of the events making him successor in this trust, shall be 
received in all courts of law or equity, and to all intents and purposes, as full 
and sufficient proof thereof), and shall receive the proceeds of said sale, out 
of which shall be paid, first, the cost and expenses of executing this trust, 
including compensation to said trustee, or said sheriff, for their or his services, 
next the amount paid by said party of the third part, or his indorsees or 
assignees for taxes, insurance, or mechanics’ liens, with (ten) per cent, per 
annum interest thereon, from the date of the payment thereof, and next, the 
amount remaining unpaid upon the principal note above described, together 
with all the interest notes then due, and so much of the interest note, next 
falling due, as may be necessary to satisfy the interest on said principal note 
at the rate of per cent, per annum from the date when the preceding 

interest note became due, up to the day of sale, it being distinctly understood 
and agreed between the parties hereto, that the failure to pay any one of said 
notes, principal or interest, when due and payable, shall cause the principal 
note to become immediately due and payable, though not then due by the 
terms, tenor, or effect thereof, and the remainder, if any, shall be paid to the 
said parties of the first part or their legal representatives. 

And the said parties of the second part covenant faithfully to perform and 
fulfil the trust herein created. 


DEEDS CONVEYING LAND. 


510 

In Witness Whereof, The said parties have hereunto set their hands 
and seals the day and year first above written. 

(Signature of grantor!) {Seal.) 

{Signature of grantor’s wife.) {Seal.) 

{Signature of trustee!) {Seal.) 

{Signature of other trustee .) {Seal.) 

{Signature of creditor .) {Seal.) 

Signed, Sealed\ and Delivered in Presence of 

State of 
County of 

Be it Remembered, That on this day of 

eighteen hundred and before me, the undersigned, 

came {name of the parties who execute the deed) who are personally known 
to me to be the same persons whose names are subscribed to the foregoing 
instrument of writing, as parties thereto, and acknowledged the same to be 
their act and deed for the purposes therein mentioned. 

And the said having been by me first 

made acquainted with the contents of said instrument, on an examination 
separate and apart from her husband, acknowledged that she executed the 
same freely and without compulsion or undue influence of her said husband. 

In Testimony Whereof, I have hereunto set my hand and seal of office 
the day and year first above written. 

( 149 .) 

Trust Deed to Secure a Note, Shorter Form, but with 
Warranty, and Release of Homestead and Dower. 

This Indenture Witnesseth, That {name, residence, and occupation 
of grantor) and (name of the wife of grantor) wife of the grantor herein, 

in consideration of the indebtedness hereinafter mentioned, and one dollar ($1) 
to them paid by {na?ne, residence, and occupation of the trustee) 

grantee , the receipt whereof is hereby acknowledged, do hereby grant, 
bargain, sell, remise, release, and convey unto the said grantee , the follow¬ 
ing described lot , piece , or parcel of land, situate in the 
county of and State of to wit: {here 

describe carefully the land or premises granted, as directed in For?n 107). 

To Have and to Hold the same, with all the privileges thereunto or in 
any wise appertaining, and all the estate, right, title, interest, claim, or demand 
in and to the same, either now or which may be hereafter acquired, unto the 
said grantee., his heirs and assigns. In trust, nevertheless, for the following 
purposes: 

Whereas, The said {name of the grantor) grantor herein, is justly 
indebted upon a certain promissory note, bearing even date herewith, pay¬ 
able to the order of (here describe the note!) 



FORMS OF DEEDS. 


511 

Now, in case of default in the payment of said note, or any part thereof, 
or the interest accruing thereon, according to the tenor and effect thereof, 
or in the payment of any taxes or assessments, ordinary or special, which 
may be levied or assessed against said premises during the continuance 
hereof, on the application of the legal holders of the said note, the said 
grantee (full power being hereby given), or his legal representatives, after 
having advertised such sale days in a newspaper published in 

or by posting up written or printed notices in four (4) public 
places in the county where said premises are situate (personal notice 
being hereby expressly waived), shall sell the said premises, or any part 
thereof, and all the right and equity of redemption of the said grantor, or his 
heirs, executors, administrators, or assigns therein, at public vendue, to the 
highest bidder for cash, at at the time appointed in the said 

advertisement, or may adjourn the sale from time to time at discretion and 
as the attorney of said grantor, for such purpose hereby constituted irre¬ 
vocable, or in the name of the said grantee or his legal representatives, shall 
execute and deliver to the purchaser or purchasers thereof, deeds for the 
conveyance in fee of the premises sold, and shall apply the proceeds of sale 
(1st) to the payment of all advances made by the said party of the second part 
for taxes and assessments; and expenses for advertising, selling, and con¬ 
veying as aforesaid, including attorney's fees, and (2d) the amount due on 
said note, (3d) rendering the overplus, if any there be, to the said grantor or 
legal representatives, at the office of the said grantee in 
and it shall not be the duty of the purchaser to see to the application of the 
purchase money. 

And the said {names of the grantor and of his wife ) parties of the 

first part, hereby expressly waive, release, and relinquish unto the said party 
of the second part, the said grantee, his heirs, executors, administrators, and 
assigns, all right, title, claim, interest, and benefit whatever, in and to the 
above-described premises, and each and every part thereof, which is given 
by or results from all laws of this State pertaining to the exemption of home¬ 
steads : Provided, that the said grantor and his heirs and assigns may hold 
and enjoy said premises, and the rents, issues, and profits thereof, until 
default shall be made as aforesaid, and that when the said note and all 
expenses accruing hereby shall be fully paid, the said grantee or his legal 
representatives, shall reconvey all the estate acquired hereby in the said 
premises, or any part thereof, then remaining unsold, to (and at the cost of) 
the said grantor, or his heirs or assigns. 

And the said grantor covenants with the said grantee and with his legal 
representatives and assigns that he is seized in fee of the said premises, 
and has good right to convey the same in form aforesaid, that they are 
free from all liens or incumbrances of whatever name or nature, and that 
he will warrant and defend the same against all claims whatsoever, and will 
pay all taxes or assessments levied or assessed on the said premises, or any 
part thereof, during the continuance hereof, and pay the same ten days 
before the day of sale thereof. 


512 


DEEDS CONVEYING LAND. 


Witness the hands and seals of the said {names of the grantor 

and his wife) this day of A.D. 18 . 

{Signature of grantor) {Seal) 

{Signature of wife of grantor) {Seal) 

In Presence of 

State of 

County. 

On the day of eighteen hundred and 

before me of the County of in the State of 

appeared {name of the grantor) personally known to me to be the real 
person whose name is subscribed to the foregoing deed of trust, as having 
executed the same, and then acknowledged the execution thereof as his free 
act and deed for the uses and purposes herein mentioned. 

And the said {name of the wife of grantor) (who is personally 

known to me to be the same person who subscribed the said instrument ot 
writing), having had the contents of the said instrument made known and 
fully explained to her, and she also by me being fully informed of her rights 
under the Homestead Laws of the State, and being by me examined, sepa¬ 
rate and apart from her said husband, did acknowledge said instrument to 
be her free act and deed ; that she executed the same, and relinquished her 
dower in the lands and tenements therein mentioned, and also all her rights 
and advantages under and by virtue of all laws of this State relating to the 
exemption of homesteads, voluntarily and freely, and without the compul¬ 
sion of her husband, and that she does not wish to retract. 

Given under my hand and official seal, this day of 

A.D. 18 . 

{Signature) [Seal) 

( 150 .) 

Deed from Trustees. 

This Deed, Made and entered into this day of A.D. 

eighteen hundred and by and between {names of trustees ) 

party of the first part, and {na?ne, residence , and occupation of grantee) 

party of the second part, witnesseth, that whereas {name of the party 

who conveyed the estate to the trustees) by deed dated the day of 

18 , recorded in the Recorder’s office of County, 

State of in book conveyed the property hereinafter 

described in trust to said {name of tnistees) to secure the payment of 
certain promissory notes in said deed described, and whereas {here 

describe the no 7 i-payment or other default which has authorized the sale by 
the trustees) and the party herein of the first part, at the request of the legal 
holder of said promissory notes acting in pursuance of the provisions of said 
deed of trust, and having first given days’ public notice of the time, 

terms, and place of sale, and of the property to be sold, by an advertise- 



FORMS OF DEEDS. 


513 


ment inserted on the day of A.D. 

in the a daily newspaper printed in the city of 

and continued to the day of sale (as will appear by the copy of said adver¬ 
tisement and affidavit of publication thereof hereto annexed as a part ot 
this deed) did proceed to sell the property described in said deed at public 
vendue to the highest bidder for cash at in the city of 

on the day of 18 , 

between the hours of ten o’clock in the morning and five o’clock in the 
afternoon of said day, when and where the same was struck off to 
(the name of the purchaser who is the grantee) as the highest and last bidder 
therefor, at the price and sum of dollars, full payment whereof is 

hereby acknowledged ; now, said party of the first part, by virtue of the 
proceedings aforesaid, and in consideration of the sum of 
dollars to him in hand paid by said party of the second part, does by these 
presents bargain, sell, and convey to said (name of the grantee ) all 

the right, title, and interest (which by virtue of said trust deed and the pro¬ 
ceedings aforesaid he may or can bargain, convey, or sell) in and to the 
property described in said deed of trust, to wit (here describe the land or 
preynises granted in the same way in which they are described in the deed of 
trust under which the trustees act) 

To Have and to Hold the said described premises unto said (name 
of the purchaser) and unto his heirs and assigns forever. 

In "Witness Whereof, the said party of the first part has hereto set his 
hand and seal the day and year first herein above written. 

(Signatures) (Seals) 

In Presence of 


State of , 

County. 

Be it Remembered, that on this day of A.D. 18 , 

before me, the undersigned, personally came who are 

to me personally known to be the same persons whose names are subscribed 
to the foregoing instrument of writing as parties thereto, and they acknowl¬ 
edged the same to be their act and deed for the purposes therein mentioned. 

(Signature) 



( 151 .) 

Deed of Master in Chancery. 

This Indenture, Made this day of A.D. 18 , between 

K name of grantor) Master in Chancery, in and for the County of 
and State of , of the first part, and (name of grantee) of 

the second part, witnesseth : That whereas, at the term of the 

court of the said County of and State of > 

in the year of our Lord A.D. 18 , in a certain suit and proceedings in 
chancery, pending in said court, wherein were complainants, 

33 


5i4 


DEEDS CONVEYING LAND . 


and were defendants, to obtain a decree for the sale of the 

property hereinafter described, and for other relief, it was ordered, adjudged, 
and decreed by the court, that ( here set forth the decree under which the sale 
is viade) and the Master in Chancery, in and for the County of 
and State of was appointed to execute the said decree, and to 

make, execute, and deliver to the complainants a deed to-the said premises as 
aforesaid, conveying to {the name , residence , and occupatio?i of the 

grantees) all the interest and title of the defendant to said premises. 

Now, therefore, Know all Men by this Deed, That I, 

Master in Chancery as aforesaid, in consideration of one dollar, to me paid 
by the said party of the second part, the receipt whereof I acknowledge 
before the execution hereof, and by virtue of the decree aforesaid, have 
granted, bargained, and sold, and do hereby grant, bargain, and sell unto 
the said party of the second part, his heirs and assigns forever, the follow¬ 
ing-described real estate, lying in the County of and State of 

to wit {here describe carefully the land or pre?nises granted,\ 
as directed in Form 107). 

To Have and to Hold the said premises, with all the appurtenances 
thereto belonging, unto the said party of the second part, his heirs and 
assigns forever. 

In Testimony Whereof, The said Master in Chancery 

of County, in the State of , has hereto set his 

hand and seal the day and year first above written. 

f Signature .) {Seal.) , 

In Presence of 

State of , 

County. 

I, clerk of the county court in and for the County 

of and State of , do hereby certify, that the 

above-named whose name appears signed to the foregoing 

deed is personally known to me to be the same person described therein, 
and acknowledged to me that, as master in chancery aforesaid, he executed 
the said deed freely for the uses and purposes therein mentioned- 

Given under my hand and official seal at this 

day of A.D. 18 

{Signature?) Clerk. {Seal.) 



( 152 .) 

Sheriff’s Deed on Execution, in nse in the Western States. 

Whereas, {the name of the plaintiff" in the suit in which the execu¬ 
tion issued) did at the term, A.D. eighteen hundred and 

of the court for the County of in the 

State of , recover a judgment against {name of the defendant 


FORMS OF DEEDS. 


515 


in that suit ) for the sum of and costs of suit, upon which 

judgment and execution was issued, dated on the day of 

A. D. eighteen hundred and directed to the sheriff of 

County, to execute, and by virtue of said execution (name of the 

sheriff) of then sheriff of said county, levied upon the lands 

hereinafter described, and the same were struck off and sold to {name 
of the purchaser at the sheriff's sale) he being the highest and best bidder 
therefor, and the time and place of the sale thereof having been duly adver¬ 
tised according to law. 

And the said {name of the purchaser) having duly assigned his 

certificate of purchase to {name of the grantee) 

Now therefore, Know all by this Deed,That I, {name of the 

sheriff) sheriff of said County of in consideration of the 

premises, have granted, bargained, and sold, and do hereby convey to the 
said {name of the grantee) his heirs and assigns, the following described 
tract of land, to wit {here describe carefully the land or premises granted, as 
directed in Form 107). 

To Have and to Hold the said described premises, with all the appurte¬ 
nances thereto belonging, to the said {?iame of the grantee) and his 

heirs and assigns forever. 

Witness my hand and seal this day of in the year 

of our Lord one thousand eight hundred and 

{Signature.) {Seal.) 

In Presence of 

Sheriff of County. 


State of 
County of 

I, clerk of the court of 

County, do certify that sheriff of 

County, personally known to me to be the real person whose name is sub¬ 
scribed to the within annexed deed, this day acknowledged before me that 
he executed the said deed, as such sheriff, voluntarily and freely, for the use 
and purposes therein set forth. 

Given under my hand, and the seal of said court, this 
day of eighteen hundred and 

{Signature) Clerk. {Seal) 



( 153 .) 

Sheriff’s Deed, in use in New England. 

Know all Men by these Presents, That I {name of the deputy 

sheriff selling) of in the County of and 

State of , and a deputy sheriff under {name of the 

sheriff ), Esq., sheriff of said county, having, on the day 


516 


DEEDS CONVEYING LAND. 


of in the year of our Lord one thousand eight hundred 

and , by virtue of a writ of execution, which was issued upon a 

judgment, recovered at the term of the court holden at within 

and for the County of on the in the 

year of our Lord eighteen hundred and , by (name 

of the plaintiff in the suit ) of in the County of 

against (name of the defendant in the suit) of 
in the County of for the sum of dollars and 

cents damage and costs of suit taxed at dollars and 

cents, seized and taken all the right in equity which the 

said had on the day of 

in the year of our Lord eighteen hundred and being the time when 

the same was attached on mesne process of redeeming the following-de¬ 
scribed mortgaged real estate, to wit: ( here describe carefully the land 

or premises granted, as directed in For?n 107) and having on the 

day of last, being thirty days at least before the time 

of the sale hereinafter mentioned, given notice in writing to the said 
(;name of the defendant) of the time and place of sale, and having posted up 
notifications thereof in one public place in said town of 
and in one public place in each of the towns of and 

being two towns adjoining said town of and also having 

caused an advertisement of the time and place of sale, to be published three 
weeks successively, before the day of sale, in the public newspaper called the 
printed at in said county of 

on the day of in the year of our Lord eighteen 

hundred and made sale of said right in equity of redemp¬ 
tion at public auction, to {name of thepurchaser) of in 

; he being the highest bidder for the same, for the sum o f 
dollars. Now, therefore, in consideration of said sum of 
dollars to me paid by the said (name of the purchaser) 
the receipt whereof I do hereby acknowledge, I have given, granted, bar¬ 
gained, and sold, and do, by these presents, give, grant, bargain, sell, and con¬ 
vey to the said (name of the purchaser) his heirs and assigns forever, all 
the right in equity which the said (name of the defendant) had of redeeming 

the aforesaid mortgaged real estate, at the time aforesaid. To have and to 
hold the same to the said (name of purchaser) his heirs and assigns, 

to his and their use forever; subject, however, to be redeemed agreeably to 
the law in such case made and provided. And I, the said (name of 

grantor) in my said capacity of deputy sheriff, do covenant with the said 
(name of purchaser) as aforesaid, that, in making said sale, and in every* 
thing concerning the same, I have complied with, and observed the rules and 
requisitions of the law for making sales of rights in equity to redeem real 
estate. But I do not warrant or defend to the said ( name of the pur¬ 
chaser) that the said (name of the defendant) had any right, title, or 

interest in said estate at the time aforesaid. 


FORMS OF DEEDS. 


517 

In Witness Whereof, I, the said in my said capacity of 

deputy sheriff, have hereunto set my hand and seal this day 

of in the year of our Lord one thousand eight 

hundred and 

{Signature) {Seal.) 

Signed ,’ Sealed,\ and Delivered in Presence of 

ss. 18 . Then the above-named 

personally appeared, and acknowledged the above instrument by him signed, 
to be his free act and deed. Before me, 

Justice of the Peace. 

( 154 .) 

Sheriff's Tax Deed, in use in the Western States. 

Know all Men by these Presents, That whereas, at the 
Term , A.D. 18 , of the Court of County, 

a judgment was obtained in said court, in favor of the State of 
against the following-described lot , piece , or parcel of land, for the sum 
herein specified, to wit, the sum of {here state in writing the amount of the 
tax); said sum being the whole amount of taxes, interest, and costs assessed 
upon said lot , piece, or parcel of land, for the year 18 

And whereas, on the day of A.D. 18 

{name of the collector of taxes) then collector of taxes of the county afore¬ 
said, by virtue of a precept or order issued out of the 

Court of the county aforesaid, dated the day of 

A.D. 18 , and directed to the said 

as aforesaid, did expose at public sale, at the Court-House, in the county 
aforesaid, in conformity with all the requirements of the statutes in such case 
made and provided, the said lot , tract ,or parcel of land above described, 
for the satisfaction of the judgment so rendered, as aforesaid. And whereas, 
at the time and place aforesaid {name of the purchaser) of the County of 
and State of having offered to pay the afore¬ 
said sum, amounting to the sum of dollars and 

cents, for the {here state what part or portion of the land was sold) of said 
lot , piece, or parcel of land, as follows, to wit, the sum of 
dollars cents, which was the least quantity of said 

lot , piece, or parcel of land bid for the said lot , tract , or parcel 
of land was stricken off to {name of the purchaser) at that price. 

And whereas, the said purchaser has now made and delivered to me an 
affidavit of having complied with all the requirements of the statute and 
constitution of the State of necessary to entitle 

said purchaser to a deed for the premises so sold to him as aforesaid; and 
whereas the said ( name of the purchaser)\\a.s duly assigned the cer¬ 
tificate of purchase of the land above described, unto {the name of the 

grantee)'. Now, therefore, I, sheriff of the county of 

for and in consideration of the said above-named sum* 


518 DEEDS CONVE YING LAND. 

amounting to the sum of dollars and cents, 

paid to {the collector of taxes) of said county of by the said 

{the name of the purchaser) at the time of the aforesaid sale, and in 
consideration of {the amount of costs andfees) dollars to me paid by said 

{naine of grantee) and by virtue of the statute in such case made and 
provided, have granted, bargained, and sold, and by these presents do grant, 
bargain, and sell unto the said {natne of the grantee) his heirs and 

assigns, the premises so sold as aforesaid, situated in the County of 

and State of to wit ( here describe carefully 

the land or premises granted ’ by metes and bounds, and contents or quantity, 
or boundary marks or monuments). 

To Have and to Hold unto him, the said {the name of the grantee) 
his heirs and assigns forever, subject, however, to all the rights of redemp¬ 
tion provided by law. 

In Witness Whereof, I sheriff as aforesaid, by vir¬ 

tue of the authority aforesaid, have hereunto subscribed my name and affixed 
my seal this day of A.D. 18 . 

{Seal.) 

Sheriff of County. 


State of 
County of 

I, in and for said County and State, do certify that 

sheriff of said county, who is personally known to 
me to be the real person who executed and subscribed his name to the fore¬ 
going deed, appeared before me this day, and acknowledged that he had 
executed the same as such sheriff, freely and voluntarily, for the uses and 
purposes therein set forth. 

In attestation whereof, I have hereunto set my hand and attached the seal 
of our said court, at my office in in said County 

and State, this day of A.D. 18 

{Signature.) Clerk. {Seal.) 



( 155 .) 

Deed of Executor, in use in the Eastern States. 

Know all Men by these Presents, That whereas 
the executor) in the County of and State of 

executor of the last will of {name of the testator) late of 
deceased, by an order of the Court of Probate, held at 
within and for the County of on the 

in the year one thousand eight hundred and 
was licensed and empowered to sell and pass deeds to convey certain real 
estate of the said deceased ; and whereas, the said executor 

having given public notice of the intended sale, by causing notifications 


{name of 


day of 


FORMS OF DEEDS. 


519 

thereof to be published once a week, for three successive weeks prior to the 
time of sale, in the newspaper called the printed at 

and having first taken the oath and given the bond by law in such 
cases required, did on the day of in the year 

one thousand eight hundred and pursuant to the order and 

notice aforesaid, sell by public auction the real estate of the said deceased 
hereinafter described, to (name, residence, and occupation of the purchaser) 
for the sum of dollars he being the highest bidder 

therefor. 

Now, therefore, Know ye, That I, the said executor 

as aforesaid, by virtue of the power and authority in me vested as afore¬ 
said, and in consideration of the aforesaid sum of dollars Tn5 

paid by the said (name of the purchaser) the receipt whereof is 

hereby acknowledged, do, by these presents, give, grant, sell, and convey 
unto the said (here describe carefully the land or premises granted, by metes 
and bounds, and contents or quantity, or boundary marks or ?nonuments, 
and refer to the deed of the land to the testator, under which he held it). 

To Have and to Hold the afore-granted premises, with all the privileges 
and appurtenances to the same belonging, to him the said (zmzzz*? of pur¬ 

chaser) and his heirs and assigns, to his and their use and behoof forever. 
And I the said (name of executor) for myself and my heirs, executors, 
and administrators, do hereby covenant with the said (name of purchaser) 
and his heirs and assigns, that in pursuance of the order aforesaid, I gave 
public notice of the said intended sale, in manner aforesaid, and that I took 
the oath and gave the bond by law required, previous to fixing on the time 
and place of sale. 

In Witness Whereof, I, the said executor as aforesaid, 

have hereunto set my hand and seal this day of in the 

year of our Lord one thousand eight hundred and 

(Signature) (Seal.) 

Signed, Sealed, and Delivered in presence of 


ss. A.D. 18 . Then personally appeared 

the above-named executor and acknowledged the foregoing instru¬ 

ment to be his free act and deed. 

Before me, 

Justice of the Peace . 


( 156 .) 

Deed of Executor, in use in the Middle States. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between (name 

of executor) executor of the last will of (name and residence of 

testator) of the first part, and (name, residence , and occupation 

of the purchaser, who is the grantee) of the second part, witnesseth, that 


520 


DEEDS CONVEYING LAND. 


the said party of the first part, by virtue of the power and authority to him 
given in and by the said last will and testament, and for and in consideration 
of the sum of lawful money of the United States of 

America, to him in hand paid at or before the ensealing and delivery of 
these presents, by the said party of the second part, the receipt whereof is 
hereby acknowledged, and the said party of the second part, his heirs, 
executors, and administrators, forever released and discharged from the 
same by these presents, have granted, bargained, sold, aliened, released, 
conveyed, and confirmed, and by these presents do grant, bargain, sell, 
aliene, release, convey, and confirm unto the said party of the second part, 
and his heirs and assigns forever, all ( here describe carefully the land or 
Premises granted ’ by nu tes a?id bounds , and contents or quality , or boundary 
marks or monuments , and refer to the deed of the land to the testator , under 
which he held it.) 

Together with all and singular the edifices, buildings, rights, members, 
privileges, advantages, hereditaments, and appurtenances to the same belong¬ 
ing, or in anywise appertaining, and the reversion and reversions, remainder 
and remainders, rents, issues, and profits thereof. And also all the estate, 
right, title, interest, claim, and demand whatsoever, both in law and equity, 
which the said testator had in his lifetime, and at the time of his decease, 
and which the said party of the first part hath, by virtue of the said last will 
and testament, or otherwise, of, in, and to the same, and every part and 
parcel thereof, with the appurtenances: To have and to hold the said 
premises above mentioned and described, and hereby granted and conveyed, 
or intended so to be, with the appurtenances, unto the said party of the 
second part, and his heirs and assigns, to his and their only proper use, 
benefit, and behoof forever. And the said party of the first part, for himself 
and for his heirs, executors, and administrators, does for himself and for his 
heirs, executors, and administrators, covenant, grant, promise, and agree to 
and with the said party of the second part, and his heirs and assigns, that 
the said party of the second part, his heirs and assigns, shall and lawfully 
may from time to time, and at all times forever hereafter, peaceably and 
quietly have, hold, use, occupy, possess, and enjoy all and singular the said 
hereditaments and premises hereby granted and conveyed, or intended so to 
be, with their and every of their appurtenances, and receive and take 
the rents, issues, and profits thereof, to and for his and their own 
use and benefit, without any lawful let, suit, hindrance, molestation, 
interruption, or denial whatsoever, of, from, or by them the said party 
of the first part, his heirs or assigns ; or of, from, or by any other 
person or persons whomsoever lawfully claiming, or who shall or may 
lawfully claim hereafter, by, from, or under him, or by, from, or under 
his right, title, interest, or estate. And that free and clear, and 
freely and clearly discharged, acquitted, and exonerated, or otherw'se 
well and sufficiently saved, defended, kept harmless, and indemnified by 
them, the said party of the first part, his heirs and assigns, of, from, and 


FORMS OF DEEDS. 


521 


against all and all manner of former and other gifts, grants, bargains, sales, 
mortgages, judgments, and all other charges and incumbrances whatsoever, 
had, made, committed, executed, or done by him the said party of the first 
part, or by, through, or with his acts, deeds, means, consent, procurement, 
or privity. 

In Witness Whereof, the parties to these presents have hereunto inter¬ 
changeably set their hands and seals the day and year first above written. 

(Signature of party of the first part.) (Seal.) 

(Signature of party of the second part.) (Seal.) 

Sealed and Delivered in the Presence of 

State of 

County. 

This day personally appeared before the undersigned, (name a7id office of 
the magistrate) within and for the county and State aforesaid, (name of the 
executor) executor of the estate of (name of deceased) deceased, who is per¬ 
sonally known to me to be the person whose name as such is subscribed to 
the foregoing deed, as having executed the same, and acknowledged that he 
had as such executor subscribed to the foregoing deed, as having executed 
the same and acknowledged that he had as such executor executed the same 
for the uses and purposes therein expressed. 

In Witness Whereof, I have hereunto set my hand and seal, at 

my office in said county, this day of A.D. 18 

(Signature.) (Seal.) 

(158 ) 

Deed of Administrator of Intestate. 

This Indenture, Made this day of in the 

year of our Lord one thousand eight hundred and between 

(name and residence of administrator) administrator of the goods and 
estate of (name of mtestate) of who died intestate, 

party of the first part, and (name, residence, and occupation of the grantee .) 
of the County of and State of 

party of the second part: 

Whereas, at the term, A.D. 18 of the 

court, within and for the County of and State of 

in a certain petition or cause therein pending, in which the said (name 
of the grantor) administrator of the goods and estate of (name of the 
deceased) deceased, was petitioner, and (names of the dcfe7ida7its who 
are 7ninor children of the deceased, a7id of the widow of deceased, a7id of the 
guardia 7 i of the 7 nbiors) were defendants, the following order and decree 
were rendered, that is to say; 



522 


DEEDS CONVEYING LAND. 


State of , 

County. 

In Court Term, A.D. 18 

(name of the administrator) administrator of the goods and 
estate of (name of deceased) deceased, vs. (names of the defendants , who 
should be the widow and heirs of the deceased.) 

And now comes the petitioner by his solicitor and presents his petition 
herein, and it satisfactorily appearing to the court that the defendants have 
been duly served with summons herein by the sheriff of 
county, and that the defendants are non-residents of the State of 
and have been duly notified of this proceeding by publication as required 
by law, it is therefore ordered by the court, that the said defendants be 
called. And they, being three times solemnly called, came not, nor any 
one for them, but herein failed and made default; which it ordered to 
beentered of record ; and it further appearing to the court that the said 
(names of defendants who are ?/iinors) are minors, and have a guardian, 10 
wit, the said (name of the guardian). And afterwards the said (name 
of guardian) as such guardian comes and files his answer herein, neither 
admitting nor denying the allegations in said petition contained, but reserv¬ 
ing the right of said minor by requiring proof. And this cause having 
been brought on to be heard upon the petition herein taken as confessed 
by the answer of said guardian and the exhibits and proofs, 

and the testimony of (name of the witness or witnesses called in the case) 
witness duly sworn, who testified herein in open court, and it satisfactorily 
appearing to the court from the evidence that the said (na?ne of the deceased) 
departed this life on or about the day of 

A.D. 18 , leaving (name of his widow) his widow and (name of his 

children) his children and only heirs at law; that the petitioner herein 
was duly appointed administrator of the goods and estate of said (name 
of deceased) deceased, and that letters of administration were duly granted 
to him by this court, bearing date on the day of 

A.D. 18 , and the court having ascertained that said 
petitioner as aforesaid has made a just and true account of the condition 
of the estate of said deceased to this court, and that the personal estate 
of said deceased is not sufficient for the payment of the debts of the said 
(name of the deceased) deceased; and the court having found the amount of 
the deficiency aforesaid to be the sum of dollars, besides 

interest and costs, and it further appearing to the court that the said 
(name of the deceased) died seized of the following described real estate, 
situate in the County of and State of , to 

wit: (here describe carefully the land or firetnises granted\ by ?netes and 
bounds , and contents or quantity , or boundary marks or monmncnts , and 
refer to the deed of the land to the deceased\ under which he held it) and the 
court having ascertained that it will be necessary to sell the said real estate 



FORMS OF DEEDS. 


523 


to pay the deficiency aforesaid, with the expenses of administration now due 
and to accrue; it is therefore ordered, adjudged, and decreed, that the said 
petitioner proceed, according to law, to advertise and make sale of the real 
estate above described, or as much thereof as may be necessary to pay the 
debts now due from said estate, and the costs of administration now due 
and to accrue. And it is ordered and decreed by the court, that said sale 
shall be made on the following terms, viz.: ( here set forth the terms, place, 
time, and manner of the sale as prescribed in the decree) which terms shall 
be distinctly set forth in all the advertisements of said sale. 

It is further ordered that upon such a sale being made, that said ( name 
of said administrator) shall make and execute to the purchaser or pur¬ 
chasers of said real estate, good and sufficient deed or deeds to convey the 
interest of said deceased therein at the time of his decease, and that said 
(name of the administrator) report his action in the premises with all con¬ 
venient speed. And it is further ordered, that his cause stand continued 
for said report. 

And Whereas, In pursuance of said order and decree, the said party of 
the first part did, on the day of A.D. 18 , 

between the hours of ten o’clock in the forenoon and five o’clock in the 
afternoon of such day, at {place of sale) expose to sale by public vendue, 
to the highest bidder, the lands and real estate so ordered to be sold, in said 
decree, having first given notice of the time, terms, and place of such sale, 
with a description of such lands and real estate, according to the terms and 
requirements of said order and decree, and of the statute regulating such 
sales, as will more fully and at large appear by the report of such sale, made 
by said party of the first part, as administrator as aforesaid, to the said 
court. 

And Whereas, At such sale, the said party of the second part became 
the purchaser of the following described lands and real estate, being the 
highest bidder therefor, at the following price; that is to say {here state 
what part, or the whole, of the above-described lands were sold, and at what 
price). 

Now Therefore, This indenture witnesseth, that the said party of the first 
part, by virtue of the order and decree aforesaid, and in consideration of the 
premises, and for the further consideration of the sum of dollars, 

to him in hand paid by the said party of the second part, the receipt of which is 
hereby acknowledged, has granted, bargained, sold, and conveyed, and by 
these presents does grant, bargain, sell, and convey unto the said party of the 
second part, his heirs and assigns, the lands and real estate last above 
described as having been sold to the said party of the second part, to have 
and to hold the same with all the appurtenances thereunto belonging, or in 
anywise appertaining, to the only proper use, benefit, and behoof of the said 
party of the second part, and his heirs and assigns forever. And the said 
party of the first part, for the consideration aforesaid, covenants with the said 
party of the second part, and his heirs and assigns, that he has in all respects 


524 


DEEDS CONVEYING LAND. 


complied with the order and decree aforesaid, and with the directions of the 
law generally in such case made and provided. 

In Witness Whereof, The said party of the first part as administrator 
as aforesaid, has hereunto set his hand and seal the day and year first above 
written. 

(. Signature.) {Seal.) 

Administrator of {name of deceased) as aforesaid. 

In Presence of 
State of 

County. 

This day personally appeared before the undersigned, 
within and for the county and State aforesaid, executor 

of the estate of {name of deceased) deceased, who is personally known to me 
to be the person whose name as such is subscribed to the foregoing deed, 
as having executed the same, and acknowledged that he had as such execu¬ 
tor subscribed to the foregoing deed, as having executed the same, and 
acknowledged that he had as such executor executed the same for the uses 
and purposes therein expressed. 

In Witness Whereof, I have hereunto set my hand and seal, 

at my office in said county, this day of A.D. 18 

(. Signature.) {Seal.) 

( 160 .) 

Deed of Referee on Foreclosure, in use in the Middle 

States. 

This Indenture, Made the day of in the year 

one thousand eight hundred and between {name and resi¬ 

dence of the referee and grantor), a referee duly appointed as hereinafter 
mentioned, of the first part, and {name, residence, and occupation of the 
grantee) of the second part. 

Whereas at a Term of the {name of the court) court, on 

the day of one thousand eight hundred and it 

was among other things ordered and adjudged by the said court, in a certain 
action then pending in the said court, between {names of plaintiff and 
defendant in the action). 

That all and singular the mortgaged premises mentioned in the complaint 
in said action, and in said judgment described, or so much thereof as might 
be sufficient to raise the amount due to the plaintiff for principal, interest, 
and costs in said action, and which might be sold separately, without mate¬ 
rial injury to the parties interested, be sold at public auction, according to 
the course and practice of said court, by or under the direction of the said 



FORMS OF DEEDS. 


525 

party of the first part as referee thereby, duly appointed for that purpose ; 
that the said sale be made {here state the directions in the order of 
court as to the place a 7 id time of the sale) that the said referee give public 
notice of the time and place of such sale, according to the course and 
practice of said court, and that any of the parties in said action might 
become a purchaser or purchasers on such sale ; that the said referee execute 
to the purchaser or purchasers of the said mortgaged premises, or such 
part or parts thereof as should be sold, a good and sufficient deed or deeds 
of conveyance for the same. 

And Whereas, the said referee, in pursuance of the said judgment of 
the said court, did on the day of one thousand eight 

hundred and sell at public auction at {the place of sale) the 

premises in the said judgment mentioned, due notice of the time and place 
of such sale being first given, agreeably to the said judgment; at which sale 
the premises hereinafter described were struck off to the said party of the 
second part for the sum of dollars, that 

being the highest sum bidden for the same, Now this indenture witnesseth, 
that the said referee, the party of the first part to these presents, in order 
to carry into effect the sale so made by him as aforesaid, in pursuance of 
the judgment of said court, and in conformity to the statute in such case 
made and provided, and also in consideration of the premises, and of the 
said sum of money so bidden as aforesaid, being first duly paid by the said 
party of the second part, the receipt whereof is hereby acknowledged, hath 
bargained and sold, and by these presents doth grant and convey unto the 
said party of the second part, the premises aforesaid, situate, bounded, and 
described as follows {describe here the premises sold as directedm Form 107). 

To Have and to Hold all and singular the premises above mentioned 
and described, and hereby conveyed, or intended so to be, unto the said party 
of the second part, his heirs and assigns, to and for his and their only 
proper use, benefit, and behoof. 

In Witness Whereof, The said referee as aforesaid, hath 

hereunto set his hand and seal, the day and year first above written. 

{Signature.) {Seal.) 

Sealed and Delivered in the Presence of 

State of , 

County. 

On the day of one thousand eight hundred and 

before me came known to me to be the individual 

described in, and who executed the above conveyance, and acknowledged 
that he executed the same. 



{Signature.) 


526 


DEEDS CONVEYING LAND. 


( 161 .) 

Deed of Collector of Taxes. 

To all Persons to whom these Presents shall come, I, ( name 

of collector) of in the County of and State of 

collector of taxes for said town of duly chosen and qualified at 

the last annual meeting of the inhabitants of said town, held on the 
day of last past sends greeting : 

Whereas, the assessors of said town of {name of the tow7i) in their list 
of assessments committed to me, the said ( name of the collector) to collect, 
have assessed {name of the party for whose taxes the land is sold) a 
resident owner of a certain tract of land situated in said 
bounded and described as follows, Viz. {describe the pre7nises as directed in 
Fonn io7) the sum of {arnoimt of tax) and dollars, as a tax on said 
premises for the year eighteen hundred and 

And Whereas I, the said ( na77ie of collector) have demanded payment of 
said tax of ( 7ia77ie of party taxed) more than fourteen days before proceeding 
to advertise and sell as hereinafter set forth. 

And Whereas, the said ( na77ie of the party taxed) has given no written 
authority to any inhabitant of said town, as his attorney to pay the tax im¬ 
posed on said land, and no mortgagee of said land has given written notice 
to the clerk of said town, that he the said mortgagee holds a mortgage 
thereon, nor given written authority to any inhabitant of said town as his 
attorney, to pay said tax. 

And Whereas, I, the said having given public notice of the 

time and place of sale of the said land, for the non-payment of said tax, by 
an advertisement thereof three weeks successively, in the newspaper called 
the printed and published in in said county, the 

last publication of said advertisement being one week before the time of 
said sale : also by posting a like notice on said land three weeks before the 
time of said sale ; and also by posting a like notice ( here state whatever 
other places the 7iotice was posted at) being two public places in said town, 
three weeks before the time of said sale, which notices severally contained 
the name of the said {na77ie of the party taxed) and the amount of the tax 
assessed on said land; also a substantially accurate description of said land, 
did, on the day of instant, pursuant to the authority 

and notice aforesaid, no person appearing to pay said tax, and it being the 
opinion of me, that the said land could not be conveniently divided and a 
part thereof set off without injury to the residue, and judging it to be most 
for the public interest to sell the whole of said land, sell, at public auction, 
the said land above described, to {7ia7ne of purchaser and granted) for the 
sum of and TFff dollars, he being the highest bidder therefor. 

Now Therefore Know Ye, that I, the said {7ia77ie of the collector) by 
virtue of the authority in me vested as aforesaid, and in consideration of 
the aforesaid sum of and dollars, to me paid by the said {name 


FORMS OF DEEDS. 


527 


of the purchaser) the receipt whereof is hereby acknowledged, do hereby 
give, grant, bargain, sell, and convey unto the said all that said 

tract or parcel of land above mentioned and described, with the appurte¬ 
nances thereto belonging. 

To Have and to Hold the same to him, the said grantee, his heirs and 
assigns, to his and their use and behoof forever; subject, nevertheless, to 
the right of redemption, according to law. 

And I, the said grantor, do covenant with the said grantee, his heirs and 
assigns, that in making the said sale as above set forth, I have complied 
with, observed, and obeyed all the provisions of law for the sale of real 
estate for the non-payment of taxes. 

In Witness Whereof, I, the said collector, have hereto set my 

hand and seal, this day of in the year eighteen hundred 

and 

( Signature .) (Seal.) 

Executed and delivered in presence of 
State of 



A.D. 18 


Then personally appeared the above-named 


collector, and 


acknowledged the above instrument to be his free act and deed. 


Before me, 


Justice of the Peace . 


( 162 .) 

Deed of Assignee, in use in the Western States. 


This Indenture, Made this 


day of 


in the 
(A.D. 18 ) 


year of our Lord one thousand eight hundred and 


between (na?ne, residence, and occupation of the assignee who is the grantor) 


as assignee of (name, residence, and occupation of assignor) of the one part, 
and (name, residence, and occupation of the purchaser who is grantee) of the 
other part: 

Whereas, The said (na?ne of the assignor) being lawfully seized in 
his demesne, as of fee, among other things, of and in a certain lot, piece, or 
parcel of ground, situate in the County of and State of 

known and described as follows, to wit ( here describe the premises as in 
Form 107). And being so thereof seized, did, on or about the 
day of A.D. one thousand eight hundred and (A.D. 18 ), 

enter into a written contract with the said party of the second part for the 
sale of the above-described premises for the sum of dollars. 

And Whereas, The said (name of the assignor) did, by his certain deed 
of assignment, bearing date the day of 

A.D. 18 , grant, bargain, sell, aliene, remise, release, convey, assign, 

transfer, and set over (with other property) the above-described lot, piece, or 
parcel of ground unto the said party of the first part, his successors, 


DEEDS CONVEYING LAND . 


528 

executors, administrators, and assigns forever, in trust nevertheless, to and 
for the uses and intent and purposes in said deed of assignment mentioned 
and set forth, reference thereto being had may fully and at large appear; 
which said deed of assignment is recorded in Book page 

of deeds, in the office of (the clerk of the Circuit Court of said 
county, and ex-officio recorder of deeds). 

And Whereas, The said assignor did not comply with 

the said contract before the execution and delivery of the said deed of 
assignment to the said party of the first part. 

Now this Indenture Witnesseth, That the said {name of the assignee 
and grantor) assignee of said {name of the assignor) for and in con¬ 
sideration of the sum of dollars (being the balance 

of the purchase money and interest due on said contract), unto him in hand 
paid by the said party of the second part, at and before the ensealing and 
delivery hereof, the receipt whereof is hereby acknowledged by these pres¬ 
ents, does grant, bargain, sell, aliene, release, and confirm unto the said party 
of the second part, and his heirs and assigns, all the above mentioned and 
described lot, piece, or parcel of ground, together with all and singular the 
rights, hereditaments, and appurtenances thereunto belonging or in anywise 
appertaining, and all the estate, right, title, interest, property, claim, and 
demand whatever, that he the said assignor had and held at and immediately 
before the execution and delivery of the said deed of assignment to said 
party of the first part, and also all the right, title, interest, property, claim, 
and demand whatever, that the said party of the first part acquired in, under 
or by virtue of the said deed of assignment by said assignor, to him, the 
said party of the first part. To have and to hold the same, together with all 
and singular the appurtenances and privileges thereunto belonging, or in 
anywise appertaining, and all the estate, right, title, interest, and claim what¬ 
soever, either in law or equity, that said assignor had and held at the time of 
and immediately preceding the execution and delivery of said deed of 
assignment to the said party of the first part, and all the right, title, interest, 
and claim whatsoever of the said party of the first part, either in law or 
equity, to the only proper use, benefit, and behoof of the said party of the 
second part, his heirs and assigns forever. 

In Witness Whereof, The said party of the first part has hereunto set 
his hand and seal, the day and year first above written. 

{Signature of Assignee.) {Seat.) 

State of 

County. 

a in and for said county, in the 

State aforesaid, do hereby certify that who is personally 

known to me as the real person whose name is subscribed to the within deed, 
appeared before me this day, in person, and acknowledged that he executed 



FORMS OF DEEDS. 


529 

and delivered the said deed, as his free and voluntary act, for the uses and 
purposes therein set forth. 

Given under my hand and seal this day 

of in the year of our Lord one thousand eight hundred and 

( Signature .) (Seal.) 

( 163 .) 

Acknowledgment of G-rantor and "Wife identified, before 
Commissioner for another State. 

State of 
County of 

Be it Remembered, That on the day of 

one thousand eight hundred and before me, 

commissioner for the State of (name of the State of which he is commis¬ 
sioner ) resident in the of , duly appointed, 

commissioned, and sworn to take acknowledgments and proof of deeds and 
other writings in the State of , to be used or recorded in 

the said State of ( name of the State of which he is commissioner ) and 
to administer oaths and affirmations, and to take depositions in said State of 
, to be used within th^ said State of 

appeared (name of grantor) and (name of wife of grantor) his wife, who are 
satisfactorily proven to me to be the individuals described in, and who exe¬ 
cuted the within deed, from said (name of grantor) and wife to (name of 
grantee) by the oath of (witnesses to their identity) who being by me duly 
cautioned and sworn, deposed that he knew them, the individuals, then 
present, to be the persons described in, and who executed the within 
deed. The said and ' his wife, then 

and there acknowledged to me that they executed the said deed for the 
purposes therein mentioned; and the said (name of the wife) being exam¬ 
ined by me privily, and apart from her said husband, and the contents and 
effect of the said deed being by me first duly explained to her, did then and 
there acknowledge that she executed the same for the purposes therein 
mentioned, freely and without compulsion of or from her said husband. 

In Witness Whereof, I have hereunto set my hand and affixed the seal 
of my office, on the day of in the year 

of our Lord one thousand eight hundred and 

(Signature.) (Seal.) 



Dominion of Canada. 

The two Canadas were separated as to civil rights in 1791, 
and the French laws were allowed to remain in force in Lower 
Canada, while the civil laws of England were declared to be in 
force in Upper Canada. Now, both of these provinces, and with 
34 


530 


DEEDS CONVEYING LAND. 


them nearly all the other British provinces in North America, 
are consolidated into the Dominion of Canada. But the same 
distinction of law continues to a considerable extent. In the 
Province of Quebec, formerly Lower Canada, the principles, 
forms, and usages of the French law prevail largely; while, in 
the other provinces, the common law of England prevails, as in 
the United States generally, and the forms and usages are sub¬ 
stantially similar in all of them. 

We give selected forms of deeds of grant and sale, mort¬ 
gages, and leases, from different provinces, which we believe 
will suffice for practice generally throughout the Dominion. 
There are certain provisions, which, though not universal, are 
prevalent, and would always be safe and prudent. Deeds con¬ 
veying land are now almost universally registered, and there 
should be a subscribing witness, who declares in an affidavit his 
name, residence, and occupation, and makes oath : i. To the exe¬ 
cution of the original, and of the duplicate, if there be one. 2. To 
the place and date of execution. 3. That he knew the parties 
to the instrument, or one or more of them, as the case may be. 
If the deed be made in Quebec, it should be executed before a 
judge, or prothonotary, or the clerk of the Circuit Court, or a 
commissioner empowered to take affidavits, or a notary public. 

( 164 .) 

Deed of Land in use in the Province of Ontario. 

This Indenture, Made (in duplicate ) the day of 

one thousand eight hundred and in pursuance of the Act 

respecting short forms of conveyances, between (here insert the name, occu¬ 
pation ,, and residence of the grantor or grantors ) of the first part, and (here 
insert the name , occupation , and residence of the grantee or grantees) of the 
second part, 

Witnesseth, That in consideration of (here insert the price paid) of 
lawful money of Canada, now paid by the said part of the second part to 
the said part of the first part (the receipt whereof is hereby by 
acknowledged), the said part of the first part do grant unto the said 
part of part, heirs and assigns forever, all and singular 

th certain parcel or tract of land and premises situate, lying and being 
(here insert a description of the premises sold, substantially the sa?ne as in 
Form 107). 

To Have and to Hold unto the said part of the 


part, 


FORMS OF DEEDS. 


531 


heirs and assigns, to and for their sole and only use forever: 

subject, nevertheless, to the reservations, limitations, provisos, and condi¬ 
tions expressed in the original grant thereof from the Crown. And the said 
part of the first part release to the said part of the part all 

claims upon the said lands. 

In Witness Whereof, The said parties hereto have hereunto set their 
hands and seals. 

(.Signatures .) {Seals.) 

Signed, Sealed , and Delivered in the Presence of 

County of to wit : 

make oath and say: 1. That I 

was personally present and did see the within instrument and duplicate 
duly signed, sealed, and executed by 

the part thereto. 2. That the said instrument and duplicate were executed 
at the . 3. That I, 

know the said part . 4. That I am a subscribing witness to the said 

instrument and duplicate. 

Sworn before me at the of in the County of 

this day of in the year of our Lord 18 . 

A Co?nmissioner for taking affidavits in B. R., &>c. 

( 165 .) 

Deed of Land with Mortgage Back to secure the Price, in 
use in the Province of Quebec. 

On This Day, the of in the year of our Lord 

one thousand eight hundred and before the undersigned public 

notar , duly commissioned and sworn, in and for the heretofore Province 
of Lower Canada, now the Province of Quebec, in the Dominion of Canada, 
residing in the city of Montreal, in the said Province, personally appeared 
{name, residence, and occupation of the grantor or grantors ) who acknowl¬ 
edged and confessed to have bargained, sold, assigned, transferred, and 
made over, and by these presents do bargain, sell, assign, transfer, and 
make over, from henceforth and forever, with promise of warranty against 
all gifts, dowers, mortgages, substitutions, alienations, and other hindrances 
whatsoever, to {name, residence , and occupation of the grantee or grantees) 
part to these presents, and accepting thereof, for heirs and assigns, 

{the description of the premises conveyed substantially as in Form 107,) with 
all and every the members and appurtenances thereunto belonging, of all 
which the said purchaser declare to have a perfect knowledge, as having 
seen and viewed the same, and therewith content and satisfied. Which 
said vendor lawfully seized thereof, by virtue of a good and 

sufficient title, the same having been acquired {here give a brief but accurate 
account or abstract of the title). The aforesaid hereby bargained and sold 
lot , piece , or parcel of land and premises. 


DEEDS CONVEYING LAND. 


532 

To Have, Hold, TJse, and Enjoy the aforesaid bargained and sold 

and premises, with their rights, members, and appur¬ 
tenances, unto the said heirs and assigns, as their own proper freehold 

forever, by virtue of these presents, to enter upon and take possession of the 
aforesaid and premises . The present 

bargain and sale is made in manner as aforesaid, for and in consideration of 
the sum of 

And for Security of the due and faithful payment of the said balance of 
consideration money and interest, the hereby bargained and sold lot of 

and premises, are, by these presents, specially, and by privilege of 
bailleur de fonds, mortgaged and hypothecated. 

And, as further security, the said purchaser do hereby bind and 
oblige immediately to insure and to keep constantly insured at 

own costand expense against loss by fire, with such insurance com¬ 
pany or companies as the said vendor or representatives may approve 
of, for a sum of money equal to the amount of the present obligation, the 
house and other buildings erected on the above-described piece and parcel 
of land, and to transfer to the said vendor and representatives the policy or 
policies of such insurance and insurances, together with the sum of money 
thereby insured, the whole as long as any part or portion of the said amount 
in principal or interest may remain unpaid. Failing which, the said vendor 
heirs and assigns, shall have the right to do so, and the said pur¬ 
chaser heirs and representatives, shall be bound to repay on demand 

to the said vendor heirs and assigns, all such sum and sums of money 
which he or they may have expended in so doing; and for security thereof 
the said premises are hereby further hypothecated to the extent of 

And in consideration of the premises, the said vendor do hereby trans¬ 
fer and set over to the said purchaser all right of property, claim, title, 
interest, demand, seizin, possession, and other rights whatsoever, which the 
said vendor can have, demand, or pretend in or upon the aforesaid hereby 
bargained and sold lot , piece , or parcel of land and premises of which 
hereby divest in favor of the said purchaser 

heirs and assigns consenting and agreeing, that the said purchaser be, and 
remain seized and invested with the full and entire possession thereof, and 
for that purpose, do hereby constitute the bearer of these presents Attor¬ 
ney, to whom give all necessary power and authority to that effect,— 

For thus , &r’c. 

And at the making and passing of these presents also personally appeared 
and intervened Dame wife of the said 

by her said husband duly and specially authorized for all and every the 
effects and purposes hereof; who, after having had and taken communication 
of the foregoing deed of sale, declared to have renounced, as by these pres¬ 
ents, she doth, as well in her own name and behalf, as for and in the name 
*md on behalf of her child or children born or to be born, issue of her mar¬ 
riage with the said renounce to all dower and all right and 

title of dower, soit cautumier ou prefix which she, the said 


FORMS OF DEEDS. 


533 

might or of right ought to have or claim in or upon the above-described and 
hereby bargained and sold lot, piece, or parcel of land and premises, of which 
she hereby divests herself and her said children, declaring the said property 
and every part thereof, hereby freed, cleared, and discharged of and from all 
her said rights of dower, and all other her matrimonial rights and claims, 
whether legal, stipulated, or customary. 

And for the execution of these presents, and of every the premises, the 
said parties have elected their domicil at the place above mentioned. 
Where , etc. — Notwithstanding, etc. — Promising, etc. — Obliging, etc. — Re¬ 
nouncing, etc. 

Done and Passed at the said city of Montreal, in the office of 
the said Notary, on the day, month, and year first before written, 
in the noon, and signed by the said with, 

and in the presence of said Notary, also hereunto subscribing, these pres¬ 
ents having been first duly read and executed under the number 
thousand hundred and 

( 166 .) 

Deed of Land with Covenants and Release of Dower, in 
use in the Province of Ontario. 

This Indenture, Made (in duplicate') the day of 

in the year of our Lord one thousand eight hundred and in 

pursuance of the Act respecting short forms of conveyances, between (here 
hisert the name, residence, and occupation of the gra7itor or grantors) of 
the first part (here insert the name of the wife of the grantor), wi of the 
said part of the first part; of the second part; and (here insert the natne, 
residence, and occupation of the grantee or 'grantees) of the third part. 

Witnesseth, That in consideration of of lawful money of 

Canada, now paid by the said part of the third part, to the said part of the 
first part (the'*receipt whereof is hereby by acknowledged), he the said 
part of the first part, do grant unto the said part of the third part, 
heirs and assigns forever, all and singular th certain parcel or tract of 
land and premises situate, lying, and being (here insert the description of 
the premises conveyed, substantially as in Form 107). 

To Have and to Hold unto the said part of the third part, heirs 

and assigns, to and for and their sole and only use forever ; subject, 
nevertheless, to the reservations, limitations, provisos, and conditions ex¬ 
pressed in the original grant thereof from the Crown. 

The said part of the first part covenant with the said part of the 
third part that he ha the right to convey the said lands to the said part 
of the third part, notwithstanding any act of the said part of the first 
part. 

And that the said part of the third part shall have quiet possession of 
the said lands, free from all incumbrances. 


534 


DEEDS CONVEYING LAND. 


And the said part of the first part covenant with the said part of the 
third part, that will execute such further assurances of the said lands as 
may be requisite. 

And the said part of the first part covenant with the said part of the 
third part, that he ha done no act to encumber the said lands. 

And the said part of the first part release to the said part of the third 
part all claims upon the said lands. 

And the said part of the second part, wi of the said part of the first 
part, hereby bar dower in the said lands. 

In Witness Whereof, The said parties hereto have hereunto set their 
hands and seals. 

Signed,, Sealed\ and Delivered in the Presence of 

Received, on the day of the date of this Indenture, from the said part 
of the third part, the sum of being the full consid¬ 

eration therein mentioned. 

( Witness .) 

County of to wit: 

I, of the in the County of make 

oath and say: i. That I was personally present and did see the within in¬ 
strument and duplicate thereof duly signed, sealed, and executed by 

the part thereto. 2. That the said instrument and duplicate 
were executed at the 3. That I, know the said 

part . 4. That I am a subscribing witness to the said instrument and 
duplicate. 

Sworn before me at in the County of 

this day of in the year of our Lord 18 

A Cojnmissioner for taking Affidavits in B. P., etc. 

( 167 .) 

Deed of Grant and Quitclaim, for General Use. 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and between 

(name, residence, and occupation of the grantor) of the one part, and 
(name, residence, and occupation of the grantee ) of the other part, witnesseth 
that for and in consideration of the sum of of lawful money of 

to the said in hand well and truly 

paid by the said at or immediately before the sealing 

and delivery of these presents (the receipt whereof the said 

do hereby acknowledge, and of and from the same, and every 
part thereof, do acquit, release, and discharge the said 
heirs, executors, administrators, and assigns forever by these presents) 

the said hath granted, released, and confirmed, 

and by these presents doth grant, release, and confirm to the said party of 
the first part. (Here describe carefully the premises conveyed). 


FORMS OF DEEDS. 


535 

Together with all and every the rights, privileges, easements, advant- 
ages, and appurtenances whatsoever, to the said hereditaments belonging, 
or in anywise appertaining, or thereunto now or heretofore holden, used, 
occupied, or enjoyed. 

To Have and to Hold the said messuages and tenements, land and 
hereditaments, and all and singular other the premises hereinbefore granted, 
appointed, and released, or expressed and intended so to be, with their ap¬ 
purtenances, unto and to the use of the said heirs and 

assigns forever. Subject, nevertheless, to the quit-rents to become due, 
exceptions, reservations, covenants, and conditions in the original grants or 
letters-patent of the said premises reserved and contained. 

And the said do hereby for heirs, executors, and 

administrators, covenant, promise, and agree with and to the said 

heirs and assigns, in manner and form following ; that is to say, that 
it shall and may be lawful to and for the said heirs and 

assigns, from time to time, and at all times hereafter, peaceably and quietly 
to enter into and upon, and to have, hold, occupy, possess, and enjoy the 
said messuages, lands, and other heraditaments hereinbefore granted and 
released, or expressed and intended so to be, with their appurtenances, and 
to receive and take the rents, issues, and profits thereof, and of every part 
thereof, to and for his and their proper use and benefit, without the lawful 
let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, 
of or by the said heirs or assigns, or of or by any 

other person, lawfully or equitably claiming or to claim, by, from, or under, 
or in trust for him, them, or any of them. 

In Witness Whereof, I, the said (name of the grantor ), have hereunto 
subscribed my name and affixed my seal, at on the day 

of in the year of our Lord 

(Name of Grantor .) (Seal.) 

Executed and Delivered in Presence of 
(Names of witnesses .) 

$ 

Received, on the day of the date of the within written Indenture, of and 
from within named, the sum of of lawful 

current money of being the full consideration money within men¬ 
tioned, to be paid by to 

Witness. 

This Deed was acknowledged before me by therein 

named apart from her husband, to have been voluntarily executed by her, 
and that she was aware of the nature of the contents thereof. 

Dated this day of A.D. 18 

J. P. for 


County . 


536 


DEEDS CONVEYING LAND . 


( 168 .) 

Deed of Grant of Sale of Land, in use in Prince Edward 

Island. 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and between ( name, 

residence, and occupation of the grantor) of the one part, and (name, resi¬ 
dence, and occupation of the grantee) of the other part, 

Witnesseth, That for and in consideration of the sum of 
of lawful money of Prince Edward Island, to the said in hand 

well and truly paid by the said at or immediately 

before the sealing and delivery of these presents (the receipt whereof he 
the said doth hereby acknowledge, and of and from the same, 

and every part thereof, doth acquit, release, and discharge the said 

heirs, executors, administrators, and assigns, and every of them, 
forever, by these presents) he the said hath granted, 

bargained, sold, aliened, released, and confirmed, and by these presents, 

doth grant, bargain, sell, aliene, release, and confirm 
(and the said (name of the wife of the grantor) doth hereby release all 
her right of dower) unto the said heirs and assigns, all 

that tract, piece, or parcel of land, situate, lying, and being (describe carefully 
the premises sold and conveyed). 

Together with all woods, underwoods, ways, waters, watercourses, 
houses, outhouses, yards, buildings, stables, gardens, fences, profits, com¬ 
modities, privileges, easements, and advantages whatsoever, to the said lands, 
hereditaments, and premises belonging, or in anywise appertaining, or there¬ 
with usually held, used, occupied, possessed, enjoyed, reputed, taken, or 
known as part, parcel, or member thereof, or of any part thereof ; and the 
reversion and reversions, remainder and remainders, rents, issues, and prof¬ 
its thereof, and of every part thereof ; and all the estate, right, title, trust, 
interest, property, claim, and demand' whatsoever, both at law and in equity, 
of the said of, in, to, or out of the said lands, 

hereditaments, and premises, or any part thereof : 

To Hava and to Hold the said lands, hereditaments, and premises 
hereby granted and released, or intended so to be, with their and every of 
their rights, members, and appurtenances, unto the said 
heirs and assigns, to the use of the said heirs and assigns 

forever; subject, nevertheless, to all taxes, assessments, and other public 
burdens now imposed or hereafter to be imposed on the said premises men¬ 
tioned to be hereby granted, or any part or parcel thereof. And the said 
heirs, executors, and administrators, covenant, 
promise, and agree to and with the said heirs and 

assigns, by these presents, in manner following; that is to say, that the 
said at the time of the sealing and delivery of these presents, lawfully, 

rightfully, and absolutely seized of and in, or well and sufficiently entitled unto. 


FORMS OF DEEDS. 


537 

the said land, hereditaments, and premises hereby granted and released, or 
intended so to be, with the appurtenances to the same belonging, of or for 
a good, sure, perfect, lawful, absolute, and indefeasible estate of inheritance 
in fee-simple in possession, without any manner of condition, use, trust, 
power of revocation, limitation of use or uses, or any other restraint, cause, 
matter, or thing whatsoever, to alter, change, charge, abridge, defeat, encum¬ 
ber, revoke, or make void the same : and that he the said 
how ha in good right, full power, and lawful and absolute 

authority to grant, release, and convey all and singular the said lands, 
hereditaments, and premises, with the appurtenances, to the use of the said 
heirs and assigns, in manner aforesaid, according to 
the true intent and meaning of these presents : and also, that the said lands, 
hereditaments, and premises hereby granted and released, or intended so to 
be, and every of them, and every part thereof, with the appurtenances to the 
same belonging, shall and lawfully may from time to time, and at all times 
hereafter, remain, continue, and be to the use of the said 
heirs and assigns, and shall and may accordingly be peaceably and quietly 
held and enjoyed by the said heirs and assigns, without any 

lawful let, suit, trouble, molestation, or interruption whatsoever, of, from, or 
by the said heirs or assigns, or any other persons whomso¬ 

ever lawfully or equitably claiming, or to claim, by, from, or under, or in trust 
for him or them, or any of their ancestors ; and that freely, clearly, and 
absolutely saved, defended, kept harmless, and indemnified by the said 
heirs, executors, or administrators, of, from, and against 
all former and other estates, rights, titles, liens, charges, and encumbrances 
whatsoever, had, made, done, committed, executed, or suffered by 
the said or any of their ancestors, or any other person 

or persons whomsoever lawfully or equitably claiming, or to claim by, from, 
or under, or in trust for him, them, or any of them, or by or through 
his, their, or any of their wilful means or default, consent, privity, or 
procurement; and, further, that the said heirs, 

and all and every other person or persons whomsoever having or lawfully 
claiming, or who shall or may have or lawfully claim, any estate, right, title, 
trust, or interest whatsoever, at law or in equity, of, in, to, or out of the 
said lands, hereditaments, and premises hereby granted and released, or 
intended so to be, or any of them, or any part thereof, by, from, or under, 
or in trust for or any of ancestors, shall and will 

from time to time, and at all times hereafter, upon the request and the 
cost and charges of the said heirs or assigns, make, do, 

perform, acknowledge, suffer, and execute, or cause and procure to be made, 
done, performed, acknowledged, suffered, and executed, all and every such 
further and other lawful and reasonable act and acts, thing and things, devises, 
conveyances, and assurances in the law whatsoever, for the further, better, 
more perfect, and absolute settling, conveying, and assuring of all and singu¬ 
lar the said lands, hereditaments, and premises hereby granted and released, 


538 


DEEDS CONVEYING LAND. 


with their appurtenances, to the use of the said heirs and 

assigns, as by the said heirs or assigns, or his, their, or 

any of their counsel learned in the law, shall be reasonably devised, advised, 
or required. 

And the parties aforesaid have hereunto set the.r hands and seals, at 
on the day of in the year of 

our Lord 

(Name of grantor!) {Seal.) 
(Name of grantee!) {Seal.) 

Executed and Delivered in Presence of 
{Name of witnesses .) 


$ 

Received, on the day of the date of the within written Indenture, of and 
from within named, the sum of of law¬ 
ful current money of being the full consideration money within 

mentioned to be paid by to 

IVitness. 


This Deed was acknowledged before me by therein named 

apart from her husband, to have been voluntarily executed by her, and that 
she was aware of the nature of the contents thereof. 

Dated this day of A.D. 18 

J. P.for County, 


ABSTRACT OF THE LAWS OF ALL THE STATES 
AND TERRITORIES RELATING TO DEEDS 
AND THEIR REQUIREMENTS. 

ALABAMA.— Every deed must be in writing or printed, and on parch¬ 
ment or paper, signed at the foot and attested by a witness or else acknowl¬ 
edged, and recorded; and if they purport on their face to be sealed instru¬ 
ments, they have such force. 

ARIZONA. — Conveyances of land may be made by deed, signed by the 
grantor, and acknowledged or proved by subscribing witness, and recorded. 
No provision as to seal. 

ARKANSAS.— Deeds are construed to pass the whole estate of the 
grantor, unless specially limited. They must be executed in the presence 
of two witnesses, or acknowledged before two witnesses, who subscribe their 
names as such, and acknowledged before the proper officer, and must be 
recorded, to be effectual against third parties. 

CALIFORNIA.— Deeds are known under the Code as “grants.” They 
pass the whole title and one in fee-simple, unless an express reservation is 
made, and must be acknowledged or proved, and recorded in the office of 
the recorder for the county where the land is situated. There is no dis¬ 
tinction between sealed and unsealed instruments. Witnesses are not 
required. 


ABSTRACT OF DEEDS. 


539 

COLORADO .— The whole estate conveyed passes, unless there is an 
express limitation. The deed must be acknowledged, and recorded in the 
county where the land is situated. No witnesses are required', and a scroll 
answers for a seal. 

CONNECTICUT. — The deed must be in writing, signed, sealed, and 
acknowledged by the grantor, attested by two witnesses, and it must be 
recorded in the clerk’s office of the town where the lands lie. A scroll 
answers for a seal. 

DAKOTA. — The deed must be in writing, signed and acknowledged, or 
proved and recorded. Witnesses or seals are not necessary. 

DELAWARE. — A deed, in order to be recorded, must be acknowl¬ 
edged, and it must be recorded in the office for the county where the land 
lies within a year. Only one witness is necessary, and a scroll answers for 
a seal. 

DISTRICT OP COLUMBIA. — Deeds are usually witnessed, although 
not required by statute to be so. They must be acknowledged and recorded. 
If recorded within six months, they are notice from the day of execution, 
otherwise from the day of record. 

FLORIDA. — Deeds must be in writing, sealed and delivered in presence 
of at least two witnesses ; must be acknowledged before a proper officer, 
and recorded in the county where the land is situated, within six months 
after the execution of the same. A scroll answers for a seal. 

GEORGIA. — A deed must be in writing, signed and sealed by the 
grantor, attested by at least two witnesses, acknowledged before the proper 
officer, and recorded in the clerk’s office of the Superior Court for the 
county where the land lies, within one year. It may be recorded afterward, 
but loses priority over a subsequent deed'which is recorded within the year. 
Mortgages must be recorded within thirty days after date. A scroll answers 
for a seal. 

IDAHO. — Deeds are construed to pass all the estate of the grantor, 
without using the word “ heirs,” unless a different intention is expressed. 
They must be in writing, and acknowledged or proved by a subscribing wit¬ 
ness, and recorded. A scroll answers for a seal. 

ILLINOIS. — Deeds convey the whole interest, unless there be a limita¬ 
tion ; must be acknowledged and recorded in the county where the land is 
situated. No witnesses are required, and a scroll answers for a seal. 

INDIANA. —The word “heirs” is not necessary in deeds, and seals 
and scrolls are abolished. The deed must be in writing, signed and 
acknowledged, or proved and recorded in the county where the lands are, 
within forty-five days after date. Witnesses are not necessary if the deed is 
acknowledged. 

IOWA. — Every deed passes the grantor’s whole interest, unless a con¬ 
trary intent appears. Seals are not necessary, neither are witnesses. Deeds 


ABSTRACT OF DEEDS. 


540 

must be acknowledged before a judge or clerk of a court having a seal, a 
notary public, county auditor, or justice of the peace, and recorded in the 
county where the lands lie. 

KANSAS. — Deeds must be in writing, subscribed by the grantor, or 
his agent or attorney, acknowledged and recorded in the county where the 
land is. Private seals, except of corporations, are abolished. Witnesses 
are not required. 

KENTUCKY.—The deed must be in writing, acknowledged, and 
recorded in the office of the clerk of the court for the county where the land 
is. Deeds made by residents of the State must be recorded in sixty days; 
those made by non-residents, within four months. Seals are abolished. 

LOUISIANA.— Deeds should be acknowledged and attested by the per¬ 
son taking the acknowledgment and two others, and should be recorded in 
the parish where the property is. No seal or scroll is necessary. 

MAINE.— Deeds must be in writing, signed and sealed, acknowledged 
by the grantor, and recorded in the county where the land is. No witnesses 
are required. 

MARYLAND.—All deeds must be signed and sealed. They require at 
least one witness, and must be acknowledged and recorded within six months 
in the county where the lands lie. A scroll answers for a seal. 

MASSACHUSETTS.— Conveyances are made in writing, signed and 
sealed by the grantor or his attorney, and acknowledged and recorded in the 
county or district where the lands lie. No witnesses are necessary. A 
scroll is not sufficient. 

MICHIGAN.— Deeds must be signed and sealed, and witnessed by at 
least two persons, and acknowledged and recorded in the county where the 
property is. A scroll answers for a seal. 

MINNESOTA.— Two witnesses are necessary to every deed. It must 
be acknowledged and recorded in the county where the land is. A scroll 
answers for a seal. 

MISSISSIPPI.— Deeds must be acknowledged, or proved by one or 
more of the subscribing witnesses, and recorded in the office of the clerk of 
the Chancery court for the county where the lands are. If the deed is not 
acknowledged, two witnesses are necessary. A seal is not required. Actual 
possession and occupancy by the grantee of property conveyed is equiva¬ 
lent to record. 

MISSOURI.—Witnesses are not necessary. The deed should be signed 
and sealed, acknowledged and recorded in the county where the land is. A 
scroll is equivalent to a seal. 

MONTANA.— Deeds must be in writing, signed by the grantor, and 
acknowledged or proved by subscribing witness, and recorded. Private. 
seals are abolished. 

NEBRASKA.—The deed must be signed in the presence of at least one 


ABSTRACT OF DEEDS. 


541 

witness, who must also subscribe as such, and acknowledged or proved, and 
recorded in the county where the land is. Seals are abolished. 

NEVADA. — Deeds must be signed, acknowledged, and recorded in the 
county where the land is. Witnesses are unnecessary, and a scroll answers 
for a seal. 

NEW HAMPSHIRE. — Deeds must be signed and sealed, attested by 
two or more witnesses, and recorded in the county where the land is. A 
scroll is not sufficient. 

NEW JERSEY. — Deeds must be signed, sealed, acknowledged, and 
recorded in the county where the land is. A scroll is not sufficient, and 
witnesses are not necessary, though usually taken. 

NEW MEXICO. — Deeds must be signed by the grantor, acknowledged, 
and recorded. A scroll answers for a seal. 

NEW YORK. — Every deed must be subscribed and sealed—and a 
scroll is not sufficient—and if not duly acknowledged previous to its deliv¬ 
ery, must be attested by at least one witness. It must be acknowledged 
before the proper officer, and recorded in the county where the land is. 

NORTH CAROLINA. — A scroll answers for a seal. Deeds must be 
acknowledged, or proved by one or more witnesses, and recorded within 
two years in the county where the land is. 

OHIO. — Deeds must be in writing, signed, acknowledged in the presence 
of two attesting witnesses before the proper officer, and recorded in the 
county where the land is. No seal is necessary. 

OREGON. — Deeds must be signed and sealed (a scroll is sufficient), 
acknowledged, and recorded in ‘the county where the land is. Two wit¬ 
nesses are necessary. 

PENNSYLVANIA. —The deed must be sealed, acknowledged, and 
recorded in the county where the property is. One or more witnesses are 
usually taken. A scroll answers for a seal. 

RHODE ISLAND. — A scroll is insufficient, the seal must be affixed. 
The deed must be in writing, signed, sealed, and delivered, acknowledged 
before the proper officer, and recorded in the office of the clerk or recorder 
of deeds of the town where the property is. Witnesses are not essential. 

SOUTH CAROLINA. — The deed must be in writing, signed, sealed, 
and acknowledged, and recorded in the office of the register of mesne con¬ 
veyances for the county where the land is. Two witnesses are necessary. 
If recorded within forty days from date, it is notice from its date, otherwise 
only from the date of record. 

TENNESSEE. — Deeds must be acknowledged by the vendor, or proved 
by two witnesses, and registered in the county where the land lies. Seals 
are abolished. 

TEXAS. — A scroll answers for a seal. The deed must be signed and 
acknowledged, or proved by two witnesses, and recorded in the office of the 
clerk of the county court where the land lies. Seals are not necessary'. 


542 


ABSTRACT OF DEEDS. 


UTAH.— Deeds must be signed by the grantor in the presence of one 
or more witnesses, acknowledged, or proved and recorded. A scroll answers 
for a seal. 

VERMONT.— Deeds must be signed and sealed (and a scroll is not 
sufficient) in the presence of two witnesses, acknowledged, and recorded in 
the clerk’s office of the town where the property is. 

VIRGINIA.—A deed must be signed and sealed by the grantor, acknowl¬ 
edged or proved by two witnesses, and recorded within sixty days in the 
office of the county clerk of the county where the land lies. If so recorded, 
it is notice from its date, otherwise from the date of record. A scroll is 
sufficient. 

WASHINGTON TERRITORY.—The deed must be in writing, signed 
and sealed by the grantor in the presence of two witnesses, acknowledged, 
and recorded. A scroll answers for a seal. 

WEST VIRGINIA.— Deeds must be executed under seal or scroll, 
acknowledged or proved by two witnesses, and recorded in the county where 
the land is. 

WISCONSIN.— Deeds must be signed and sealed in presence of two 
witnesses, acknowledged, and recorded in the county where the lands are. 
A scroll answers for a seal. 

WYOMING.— Deeds must be signed and sealed by the grantor in the 
presence of two witnesses, acknowledged, or proved and recorded. A scroll 
answers for a seal. 


CHAPTER XXX. 

MORTGAGES OF LAND. 

The purpose of a mortgage is to give to a creditor the 
security of property. It is very similar to a pledge, although 
not the same thing. 

Mortgages are now made of personal property, as well as of 
real property; but we will consider in this chapter a mortgage 
of real property; or, as it is usually called, a mortgage deed. 

This is a deed conveying the land to the creditor as fully, 
and in precisely the same way, as if it were sold to him outright; 
but with an addition. This consists of a clause inserted before 
the clause of execution, to the effect that if the grantor (the 
mortgagor) shall pay to the grantee (the mortgagee) a certain 
amount of money at a certain time, then the deed shall be void. 
It is usually expressed in words substantially like these: 



MORTGAGES OF LAND. 


543 


“ Provided, nevertheless, that if the said A B (the grantor), 
his heirs, executors, or administrators, shall pay to the said C D 
(the grantee), his executors, administrators, or assigns, the sum 

of $-with interest (semi-annually, or otherwise as agreed 

on), on or before the-day of-, then this deed, and also a 

certain promissory note signed by said A B, whereby said A B 
promised to pay said C D, or his order, the said sum at the said 
time, shall both be void; and otherwise shall remain in full 
force.” 

In some states it is more frequent to make a bond, instead 
of a note, to be secured by the mortgage; and the proviso 
should be altered accordingly; and it should also be made to 
express any other terms agreed on. Some of these will be 
spoken of presently. 

In law, everything is a mortgage which consists of a valid 
conveyance, and a promise, or agreement, which may be on the 
same or on a different piece of paper or instrument, providing 
that the conveyance shall be void when a certain debt is paid, 
or the act performed for which the mortgage is security. 

The mortgagee has now a title to the land; but it is subject 
to avoidance by payment of the debt. Until such payment, the 
land is his; and all the mortgagor owns in relation to it is a 
right to pay the debt and redeem the land. Hence, a mortgagee 
has instantly as good a right to take possession of the land 
(unless, as is now common, the deed provides that the 
mortgagor may retain possession) as if he were an outright 
purchaser. 

Formerly, a mortgagor had a right to redeem his land only 
before or when the debt became due; for if he did not pay the 
money when it was due, he had no further right. But courts of 
equity, deeming this too hard, allowed him a further time to 
redeem it. And courts of law adopted the same rule, which is 
also contained in the statutes of all our States. This right to 
redeem is called a right in equity to redeem, or, more briefly 
and commonly, an equity of redemption; which all courts now 
regard and protect. The mortgagor may sell this equity of 
redemption, or he may mortgage it by making a second or 
other subsequent mortgage of the land, and it may be attached 





544 


MORTGAGES OF LAND. 


by creditors, and would go to assignees as a part of his property 
if he became insolvent. The time within which a mortgagor 
may thus redeem his land is usually three years. 

The law regards this equity as so important that it will not 
permit a party to lose it by his own agreement. Thus, if a 
mortgagor agrees with the mortgagee, in the most positive terms, 
or in any way he can contrive, or for any consideration, that he 
will have no equity of redemption, and that the mortgagee may 
have possession and absolute title as soon as .the debt is due 
and unpaid, the law sets aside all such agreements, and gives 
the debtor his equity of redemption for three years. 

Within a few years, however, a way has been found to effect 
this purpose indirectly, which the law sanctions. Many persons 
object to lending their money on mortgage, because they will 
have to wait three years after the debt is due before the land 
can be certainly theirs. But it is now quite common for the 
mortgage deed to contain an agreement of the parties, that, if 
the money is not paid when it is due, the mortgagee may, in a 
certain number of days thereafter, sell the land (providing also 
such precautions to secure a fair price as may be agreed on), 
and, reserving enough to pay his debt and charges, pay over 
the balance to the mortgagor. This is called a power of sale 
mortgage. 

The three years of redemption do not begin from the day 
when the debt is due and unpaid, unless the mortgagee then 
enters and takes possession for the purpose of foreclosing the 
mortgage, as the legal phrase is; by which phrase is meant 
extinguishing the equity of redemption. If the debt has been 
due a dozen years, the mortgagor may still redeem, unless the 
mortgagee has entered to foreclose , and three years have elapsed 
afterwards. 

He may make entry for this purpose in a peaceable manner, 
before witnesses, as pointed out in the statutes regulating 
mortgages, or by an action at law. 

If the mortgagor redeems, he must tender the debt, with 
interest, and the lawful costs and charges of the mortgagee; 
but he will be allowed such rents and profits as the mortgagee 
has actually received, or would have received but for his own 
fault. 


MORTGAGES OF LAND . 


545 

It is commonly thought that the mortgagor has a right to 
retain possession until the debt is due and unpaid, and in fact 
he usually does so. But we have seen that the mortgagee has 
just as much right of immediate possession as a buyer; and 
therefore, if it is not intended that he should have possession at 
once, the mortgage deed ought to contain a clause to the effect 
that the mortgagor may retain possession as long as he pays 
instalments and interest as due, and complies with his other 
agreements. 

One of these other agreements, which is now very common, 
is that the mortgagor shall keep the premises insured in a cer¬ 
tain sum for the security of the mortgagee; and, if there be 
such an agreement, it should be expressed in the deed. Other¬ 
wise, if the mortgagee insures the house, he cannot charge the 
premium to the mortgagor. 

If a mortgagor erects buildings on the mortgaged land, or 
puts fixtures there, and the mortgagee takes possession of the 
land, and forecloses the mortgage, he gets all these additions. 
If the mortgagee puts them on the land, and the mortgagor 
redeems, he gets the benefit of them all, without paying the 
mortgagee for them. Such is the effect of the law if there be 
no bargain between the parties about these things. But they 
may make any bargain about them they choose to make. 

In the Forms appended to this chapter are many Forms of 
release and discharge of mortgages. In some states' it is com¬ 
mon to release a mortgage by a quitclaim deed from the holder 
of the mortgage to the holder of the land or of the equity or 
right of redemption. And not unfrequently it is done by an 
acknowledgment of satisfaction, release, or discharge drawn by 
the Register or Recorder of Deeds on the margin of the record 
of the mortgage, and duly signed by the mortgagee or holder 
of the mortgage. Any instrument will have the effect of 
discharging and annulling a mortgage, which declares with 
sufficient definiteness that the debt, obligation, or covenant, 
which that mortgage was intended to secure, is paid, satisfied, or 
performed; the instrument being duly signed, sealed, and 
acknowledged, and placed on record. It takes effect like other 
deeds from the time it is placed in the Recorder’s hands. 

35 


MORTGAGES OF LAND. 


546 

Whenever a mortgage is discharged in any way, the Recorder 
makes an entry to that effect on the margin of the record of 
the mortgage. 

The remarks which were made at the close of the preceding 
chapter (just before the Forms) concerning the various Forms of 
deeds conveying land, apply with equal force to deeds of mort¬ 
gage of land; and I refer to them now because they are equally 
necessary to the proper understanding and use of the following 
Forms. 

( 169 .) 

A Promissory Note, to be Secured by Mortgage. 

18 

for value received promise 

to pay to dollars, at 

with interest at the rate of per cent, per annum. 

This note is secured by a deed of mortgage of even date herewith from 
to 

$ {Signature.) 

( 170 .) 

Bond, to be Secured by a Mortgage. 

Know all Men by these Presents, That I {name of obligor ) of 
in the County of and State of 

, am held, bound, and obliged unto ( name of obligee') of 
in the County of and State of in the 

sum of {penalty usually twice as much as the actual debt ) to be paid to the 
said {the obligee) his executors, administrators, heirs, or assigns, and to this 
payment I hereby bind myself, my heirs, executors, and administrators, 
firmly by these presents. 

Sealed with my seal, this day of in the 

year 

The Condition of the above obligation is such, that if I the said 
{name of the obligor) or my heirs, executors, or administrators, shall pay or 
cause to be paid unto the said {name of the obligee) his heirs or assigns the 
sum of {here insert the amount of the debt or sum to be secured) on the 
day of in the year , with interest at 

per cent., payable six months from the date hereof, and every six months 
afterwards, until the said sum is paid, then the above obligation shall be void 
and of no effect, and otherwise it shall remain in full force. And I further 
agree and covenant, that if any payment of interest be withheld, or delayed 
for days after such payment shall fall due, the said principal sum and 

all arrearage of interest thereon, shall be and become due immediately on 


FORMS OF MORTGAGES, ETC. 


547 

the expiration of days, at the option of said {name of 

the obligee') or his executors, administrators, or assigns. 

{Signature) {Seal.) 

( Witness) 

( 171 .) 

Mortgage without Power of Sale and without Warranty, 
but with Release of Homestead and of Dower. 

This Indenture, made this day of in 

the year of our Lord one thousand eight hundred and 

between {name, residence, a?id occupation of mortgagor) and {name of 
wife) wife of said {name of mortgagor) parties of the first part, and {name, 
residetice, and occupation of mortgagee) party of the second part. 

Whereas, The said party of the first part is justly indebted to the said 
party of the second part, in the sum of secured 

to be paid by a certain promissory note {or bond) {describe the note or 
bond). 

Now, Therefore, this Indenture Witnesseth, That the said parties of 
the first part, for the better securing the payment of the money aforesaid, 
with interest thereon, according to the tenor and effect of the said note {or 
bond) above mentioned, and also in consideration of the further sum of one 
dollar to us in hand paid by the said party of the second part, at the delivery 
of these presents, the receipt whereof is hereby acknowledged, have granted, 
bargained, sold, and conveyed, and by these presents do grant, bargain, sell, 
and convey unto the said party of the second part, his heirs and assigns 
forever, all that ( here describe the premises as directed in Form 107). 

To Have and to Hold the Same, Together with all and singular the 
tenements, hereditaments, privileges, and appurtenances thereunto belonging, 
or in anywise appertaining. And also all the estate, interest, and claim 
whatsoever in law as well as in equity, which the parties of the first part have 
in and to the premises hereby conveyed unto the said party of the second 
part, and his heirs and assigns, and to their only proper use, benefit, and 
behoof. And the said parties of the first part hereby expressly waive, re¬ 
lease, relinquish, and convey unto the said party of the second part and his 
heirs, executors, administrators, and assigns, all right, title, claim, interest, 
and benefit whatever, in and to the above-described premises, and each and 
every part thereof, which is given by or results from all laws of this State 
pertaining to the exemption of homesteads. 

Provided Always, and these Presents are upon this Express Con¬ 
dition, That if the said party of the first part, or his heirs, executors, or 
administrators, shall well and truly pay, or cause to be paid to the said party 
of the second part, or his heirs, executors, administrators, or assigns, the 
aforesaid sum of money, with such interest thereon, at the time and in the 
manner specified in the above-mentioned note (or bond) according to the true 
intent and meaning thereof, then, in that case, these presents and everything 
herein expressed shall be absolutely null and void. 


MORTGAGES OF LAND. 


548 

In Witness Whereof, The said parties of the first part hereunto set 
their hands and seals, the day and year first above written. 

(Signature of mortgagor.) {Seal.) 

{Signature of wife of mortgagor .) {Seal.) 

Signed ., Sealed ., and Delivered in Presence of 

State of 

County. 

I, in and for the said county, in the State aforesaid, 

do hereby certify that {na?ne of mortgagor) personally known to me as the 
same person whose name is subscribed to the foregoing mortgage, appeared 
before me this day in person and acknowledged that he signed, sealed, and 
delivered the said instrument of writing as his free and voluntary act, for 
the uses and purposes therein set forth. 

And the said {name of wife) wife of the said {name of mortgagor) having 
been by me examined, separate and apart, and out of the hearing of her hus¬ 
band, and the contents and meaning of said instrument of writing having 
been by me made known and fully explained to her, and she also by me 
being fully informed of her rights under the homestead laws of this State, 
acknowledged that she had freely and voluntarily executed the same, and re¬ 
linquished her dower to the lands and tenements herein mentioned, and also 
all her rights and advantages under and by virtue of all laws of this State 
relating to the exemption of homesteads, voluntarily and freely, and without 
the compulsion of her said husband, and that she does not wish to retract 
the same. 

Given under my hand and official seal, this day of 

A.D. 18 

{Signature?) {Seal.) 

( 172 .) 

Mortgage, with Power of Sale, to Secure a Bond, without 

Release of Dower. 

This Indenture, Made the day of in 

the year one thousand eight hundred and between 

{name, residence, and occupation of 7 nortgagor) party of the first part, and 
{name, residence, and occupation of mortgagee) party of the second part: 
Whereas, the said {na?ne of mortgagor) is justly indebted to the said party 
of the second part in the sum of lawful money 

of the United States, secured to be paid by a certain bond or obligation 
bearing even date with these presents, in the penal sum of 
dollars, lawful money as aforesaid, conditioned for the payment of the said 
first-mentioned sum of {here state the amount due on the bond, and the time 
a 7 id terms of payme 7 it) as by the said bond or obligation, and the condition 
thereof, reference being thereunto had, may more fully appear. 

Now this Indenture Witnesseth, That the said party of the first part, 



FORMS OF MORTGAGES , ETC. 


549 

for the better securing the payment of the said sum of money mentioned in 
the condition of the said bond 01 obligation, with interest thereon, according 
to the true intent and meaning thereof, and also for and in consideration of 
the sum of one dollar, to him in hand paid by the said party of the second 
part, at or before the ensealing and delivery of these presents, the receipt 
whereof is hereby acknowledged, has granted, bargained, sold, aliened, 
released, conveyed, and confirmed, and by these presents does grant, bar¬ 
gain, sell, aliene, release, convey, and confirm unto the said party of the 
second part, and to his heirs and assigns forever, all (here describe the freni- 
ises as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and ap¬ 
purtenances thereunto belonging, or in anywise appertaining, and the rever¬ 
sion and reversions, remainder and remainders, rents, issues, and profits 
thereof ; and also all the estate, right, title, interest, property, possession, 
claim, and demand whatsoever, as well in law as in equity, of the said party 
of the first part, of, in, and to the same, and every part and parcel thereof 
with the appurtenances : To have and to hold the above granted, bargained, 
and described premises, with the appurtenances, unto the said party of the 
second part, and his heirs and assigns, to his and their own proper use, 
benefit, and behoof forever. 

Provided Always, and these presents are upon this express condition, 
that if the said party of the first part, or his heirs, executors, or adminis¬ 
trators, shall well and truly pay unto the said party of the second part, or his 
executors, administrators, or assigns, the said sum of money mentioned in 
the condition of the said bond or obligation and the interest thereon, at the 
time and in the manner mentioned in the said condition according to the true 
intent and meaning thereof, that then these presents, and the estate hereby 
granted, shall cease, determine, and be void. And the said (name of mort¬ 
gagor) for himself and his heirs, executors, an 1 administrators, does cove¬ 
nant and agree, to pay unto the said party of the second part, or his execu¬ 
tors, administrators, or assigns, the said sum of money and interest as 
mentioned above and expressed in the condition of the said bond. And if 
default shall be made in the payment of the said sum of money above men¬ 
tioned, or the interest that may grow due thereon, or any part thereof, that 
then, and from thenceforth, it shall be lawful foi the said party of the second 
part, or his executors, administrators, or assigns, to enter into and upon all and 
singular the premises hereby granted or intended so to be, and to sell and 
dispose of the same, and all benefit and equity of redemption of the said 
party of the first part, or his heirs, executors, administrators, or assigns 
therein, at public auction. And out of the money arising from such sale, to 
retain the principal and interest which shall then be due on the said bond or 
obligation, together with the costs and charges of advertisement and sale of 
the same premises, rendering the overplus of the purchase-money (if any 
there shall be), unto the said ( na?ne of mortgagor) party of the first part, or 
his heirs, executors, administrators, or assigns, which sale, so to be made, 


MORTGAGES OF LAND. 


550 

shall forever be a perpetual bar, both in law and equity, against the said party 
of the first part, and his heirs and assigns, and all other persons claiming or 
to claim the premises, or any part thereof, by, from, or under him or them, or 
any of them. 

In Witness Whereof, The parties to these presents have hereunto inter¬ 
changeably set theii hands and seals the day and year first above written. 

(Signature of mortgagor .) {Seal.) 

{Signature of mortgagee.) {Seal.) 

Sealed and Delivered in the Presence of 

State of 

County of 

On the day of in the year one thousand 

eight hundred and before me personally came {name of both 

parties) who are known to me to be the individuals described in, and who 
executed the foregoing instrument, and acknowledged that they executed 
the same. 

{Signature.) 

( 173 .) 

Mortgage to secure a Debt, with Power of Sale.—Short 

Form. 

This Indenture, Made the day of in the 

year one thousand eight hundi ed and between {name, residence, 

and occupatio7i of mortgagor) party of the first part, and {name, residence, 
andoccupatio7i of 77tortgagee) party of the second part, witnesseth, that the 
said party of the first part, in consideration of the sum of {the a77iou7it 
of the debt) to him duly paid before the delivery hereof, has bargained and 
sold, and by these presents does grant and convey to the said party of the 
second part, and his heirs and assigns forever, all ( here describe the pre7nises 
as directed in For77i 107 ) with the appurtenances, and all the estate, right, title, 
and interest of the said party of the first part therein. 

This Grant is intended as a security for the payment of {here describe 
the debt) which payments, if duly made, will render this conveyance void. 
And if default shall be made in the payment of the principal or interest above 
mentioned, then the said party of the second part, or his executors, admin¬ 
istrators, or assigns, are hereby authoiized to sell the premises above granted, 
or so much thereof as will be necessaiy to satisfy the amount then due, with 
the costs and expenses allowed by law. 

In Witness Whereof, the said party of the first part has hereunto set 
his hand and seal the day and year first above written. 

{Signature.) {Seal.) 

Sealed and Delivered in the Presence of 



FORMS OF MORTGAGES , ETC. 


551 


State of 

County of 


! 


ss. 


On the day of in the year one thousand 

eight hundred and before me personally came ( name of 

mortgagor ), who is known to me to be the individual described in, and who 
executed the foregoing instrument, and acknowledged that he executed the 
same, as his free act and deed. 

(Signature.) 


(174.) 

Mortgage to secure a Debt, fuller Form, with Power of 

Sale. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between (name, residence , 

and occupation of the mortgagor) party of the first part, and (tiame, residence, 
and occupation of the mortgagee) party of the second part: 

Whereas, the said party of the first part is justly indebted to the said 
party of the second part in ( here describe the a7nount and terms of the debt, 
or note, or bond). 

Now this Indenture Witnesseth, That the said party of the first part, 
for the better securing the debt (or note, or bond) above described, according 
to the true intent and meaning thereof, and also for and in consideration of 
the sum of one dollar to him in hand paid by the said party of the second 
part, at or before the ensealing and delivery of these presents, the receipt 
whereof is hereby acknowledged, has granted, bargained, sold, aliened, 
remised, released, conveyed, and confirmed, and by these presents does 
grant, bargain, sell, aliene, remise, release, convey, and confirm unto the said 
party of the second part, and to his heirs and assigns forever, all (here 
describe the premises as directed in For?n 107 ). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in anywise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof. 
And also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, and to the same, and every part and parcel thereof with the 
appurtenances: To have and to hold the above granted, bargained, and 
described premises, with the appurtenances, unto the said party of the second 
part, and his heirs and assigns, to his and their own proper use, benefit, and 
behoof forever. 

Provided Always, and these presents are upon this express condition, 
that if the said party of the first part, or his heirs, executors, or administrators, 
shall well and truly pay to the said party of the second part, or his heirs, 
executors, administrators, or assigns, the above-described debt (or note, or 
bond) according to terms and tenor thereof, then this deed (and also said debt, 


552 


MORTGAGES OF LAND. 


or note , or bond) shall be wholly discharged and void; and otherwise shall 
remain in full force and effect. And if default shall be made in the payment 
of the said sum of money above mentioned, or the interest that may grow 
due thereon, or of any part thereof, that then and from thenceforth it shall be 
lawful for the said party of the second part, or his executors, administrators, 
and assigns, to enter into and upon all and singular the premises hereby 
granted, or intended so to be, and to sell and dispose of the same, and all 
benefit and equity of redemption of the said party of the first part, or his 
heirs, executors, administrators, or assigns, therein, at public auction, 
according to the act in such case made and provided. And as the attor¬ 
ney of the said party of the first part, for that purpose by these presents 
duly authorized, constituted, and appointed, to make and deliver to the pur¬ 
chaser or purchasers thereof, a good and sufficient deed or deeds of convey¬ 
ance in the law for the same, in fee-simple, and out of the money arising 
from such sale, to retain the principal and interest which shall then be due 
on the said debt (or note, or bond ) together with the costs and charges of 
advertisement and sale of the said premises, rendering the overplus of the 
purchase-money (if any there shall be) unto the said party of the first part, 
or his heirs, executors, administrators, or assigns; which sale, so to be made, 
shall forever be a perpetual bar, both in law and equity, against the said 
party of the first part, or his heirs and assigns, and all other persons claim¬ 
ing or to claim the premises or any part thereof, by, from, or under him, 
them, or either of them. 

In Witness Whereof, The parties to these presents have hereunto set 
their hands and seals the day and year first above written. 

(Signature of mortgagor.) (Seat.) 

(Signature of mortgagee.) (Seat.) 

Sealed and Delivered in the Presence of 


State of 

County of 

On the day of in the year one thousand 

eight hundred and before me personally came (na?ne of both par¬ 

ties) who are known to me to be the individuals described in, and who exe¬ 
cuted the foregoing instrument, and acknowledged that they executed the 
same. 

(Signature.) 



( 175 .) 


Deed Poll of Mortgage, with Power to Sell, and Insurance 
Clause, and Release of Dower and Homestead. 

Know all Men by these Presents, That I (name, residence , and occu¬ 
pation of mortgagor) in consideration of to me paid by (name, 

residence , and occupation of mortgagee) the receipt whereof is hereby 
acknowledged, do hereby give, grant, bargain, sell, and convey unto the said 


FORMS OF MORTGAGES, ETC. 


553 

(name of mortgagee) all that lot or parcel of land, with all the buildings 
thereon standing, situated in the town (or city) of County of 

State of and bounded and described as follows: 

that is to say ( here describe the premises as directed in Form 107). 

To Have and to Hold the afore-granted premises, with the privileges, 
easements, and appurtenances thereto belonging, to the said grantee, and to 
his heirs and assigns, to their use forever. 

And I, the said grantor, for myself and my heirs, executors, and adminis¬ 
trators, do covenant with the said grantee, and his heirs and assigns, that I 
am lawfully seized in fee of the afore-granted premises ; that they are free 
from all incumbrances (if any incumbrance exists , say “ except as follows ,” 
and describe the incumbrance ,) that I have good right to sell and convey the 
same to the said grantee, and his heirs and assigns as aforesaid; and that I 
will, and my heirs, executors, and administrators shall warrant and defend 
the same to the said grantee, and his heirs and assigns forever, against the 
lawful claims of all persons. 

Provided, Nevertheless, That if the said grantor, or his heirs, execu¬ 
tors, or administrators, shall pay unto the said grantee, or his executors, 
administrators, or assigns, the sum of dollars TTn5 - 

in days (or ?nonths) from the day of the date hereof, 

with interest on said sum at the rate of per centum per annum, payable 
(semi-annually) and until such payment keep the buildings standing on the 
land aforesaid insured against fire, in a sum not less than 
dollars, for the benefit of said mortgagee, and payable to him in case of loss, 
at some insurance office approved by said mortgagee; or in any default 
thereof, shall on demand pay to said mortgagee all such sums of money as 
the said mortgagee shall reasonably pay for such insurance, with interest, 
and also pay all taxes levied or assessed upon the said premises, then this 
deed, as also (a certain bond or) a certain promissory note, bearing even 
date with these presents, signed by the said mortgagor, whereby for value 
received he promises to pay the said mortgagee or his order, the said sum 
and interest, at the time aforesaid, shall both be absolutely void to all intents 
and purposes. 

But if default shall be made in the payment of the money above men¬ 
tioned, or the interest that may grow due thereon, or of any part thereof, 
then it shall be lawful for the said grantee, or his executors, administrators, 
or assigns to sell and dispose of all and singular the premises hereby granted 
or intended to be granted, and all benefit and equity of redemption of the 
said (name of the mortgagor) the grantor, his heirs, executors, administrators, 
or assigns therein, at public auction ; such sale to be on or near the prem¬ 
ises hereby granted; first giving notice of the time and place of sale, by 
publishing the same once each week, for three successive weeks, in (na?ne of 
the newspaper) a newspaper printed in the county of aforesaid; 

and in his or their own names, or as the attorney of the said (na7ne of ?nort- 
gagor) the grantor, for that purpose by these presents duly authorized, con- 


554 


MORTGAGES OF LAND. 


stituted and appointed, to make and deliver to the purchaser or purchasers 
thereof, a good and sufficient deed or deeds of conveyance for the same in 
fee-simple; and out of the money arising from such sale, to retain the said 
sum of dollars, or the part thereof remaining unpaid, and 

also the interest then due on the same, together with the costs and charges 
of advertising and selling the same premises ; rendering the surplus of the 
purchase-money, if any there be, over and above said sum and interest as 
aforesaid, together with a true and particular account of said sale and 
charges, to the said {name of the mortgagor) the grantor, his heirs, executors, 
administrators, or assigns; which sale, so to be made, shall forever be a 
perpetual bar, both in law and equity, against the said {name of the 7nort- 
gagor) the grantor, and his heirs and assigns, and all other persons claiming 
or to claim the premises, or any part thereof, by, from, or under him, them, 
or any of them. 

And Provided Also, that until some breach of the condition of this deed, 
the grantee shall have no right to enter and take possession of the premises, 
and hold the same. 

In Witness Whereof, We the said {name of mortgagor) and {natne 
of his wife) wife of the said {natne of mortgagor) in token of her release 
of all right and title of or to both dower and homestead in the granted 
premises, have hereunto set our hands and seals this 

day of in the year of our Lord eighteen hundred and 

{Sigtiature of mortgagor.) (Seat.) 

{Signature of wife of mortgagor .) {Seal.) 

Executed and Delivered in Presence of 

\ 

ss. 18 

Then personally appeared the above-named and 

acknowledged the above instrument to be free act and deed, before 

me, 

Justice of the Peace. 

( 176 .) 

Mortgage by Indenture, with Power of Sale and Interest and 
Insurance Clause, to secure a Bond. 

This Indenture, Made the day of in the year one 

thousand eight hundred and between {name, residence, and 

occupation of the mortgagor) party of the first part, and {name, residence, and 
occupation of the mortgagee) party of the second part: 

Whereas, The said party of the first part is justly indebted to the said 
party of the second part, in the sum of {amount of debt due on the bond) dol¬ 
lars lawful money of the United States, secured to be paid by his certain bond 
or obligation bearing even date with these presents, in the penal sum of 
{amount of penalty) lawful money as aforesaid, conditioned for the payment 
of the said first-mentioned sum of {amount of debt due on the bond) lawful 


FORMS OF MORTGAGES , ETC. 


555 

money as aforesaid, to the said party of the second part, or his executors, 
administrators, or assigns, on the day of 

which will be in the year one thousand eight hundred and and 

interest thereon to be computed from at and after the rate 

of per cent, per annum, and to be paid ( here set forth the tune and 

ter7ns of the fay 7nenf). 

And it is Thereby Expressly Agreed, That should any deftult be made 
in the payment of the said interest, or of any part thereof, on any day whereon 
the same is made payable, as above expressed, and should the same remain 
unpaid and in arrear for the space of days, then and from 

thenceforth, that is to say, after the lapse of the said days, 

the aforesaid principal sum of ( amount of the debt' ) with all arrearage of 
interest thereon, shall, at the option of the said party of the second part, or 
his executors, administrators, or assigns, become and be due and payable 
immediately thereafter, although the period above limited for the payment 
thereof may not then have expired, anything thereinbefore contained to the 
contrary thereof in anywise notwithstanding : As by the said bond or 
obligation, and the condition thereof, reference being thereunto had, may 
more fully appear. 

Now this Indenture Witnesseth, that the said party of the first part, 
for the better securing the payment of the said sum of money mentioned 
in the condition of the said bond or obligation, with interest thereon, 
according to the true intent and meaning thereof, and also for and in con¬ 
sideration of the sum of one dollar to him in hand paid by the said party of 
the second part, at or before the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, has granted, bargained, sold, 
aliened, released, conveyed, and confirmed, and by these presents does 
grant, bargain, sell, aliene, release, convey, and confirm unto the said party 
of the seeond part, and to his heirs and assigns forever, all ( here describe 
carefully , the land or premises granted, as directed in Form 107 ). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in anywise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof ; 
and also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, and to the same, and every part and parcel thereof with the 
appurtenances: to have and to hold the above granted, bargained, and 
described premises, with the appurtenances, unto the said party of the second 
part, his heirs and assigns, to his and their own proper use, benefit, and 
behoof forever: 

Provided Always, and these presents are upon this express condition, 
that if the said party of the first part, his heirs, executors, or administrators, 
shall well and truly pay unto the said party of the second part, his executors, 
administrators, or assigns, the said sum of money mentioned in the condi¬ 
tion of the said bond or obligation, and the interest thereon, at the time and 


MORTGAGES OF LAND. 


556 

in the manner mentioned in the said condition according to the true intent 
and meaning thereof, that then these presents, and the estate hereby granted, 
shall cease, determine, and be void. And the said {name of the mortgagor) 
for himself and his heirs, executors, and administrators, does covenant and 
agree to pay unto the said party of the second part, or his executors, admin¬ 
istrators, or assigns, the said sum of money and interest as mentioned above 
and expressed in the condition of the said bond. And if default shall be 
made in the payment of the said sum of money above mentioned, or the 
interest that may grow due thereon, or of any part thereof, that then and 
from thenceforth it shall be lawful for the said party of the second part, or 
his executors, administrators, and assigns, to enter into and upon all and 
singular the premises hereby granted or intended so to be, and to sell and 
dispose of the same, and all benefit and equity of redemption of the said 
party of the first part, or his heirs, executors, administrators, or assigns, 
therein, at public auction, according to law. And as the attorney of the said 
party of the first part, for that purpose by these presents duly authorized 
constituted, and appointed, to make and deliver to the purchaser or purchasers 
thereof, a good and sufficient deed or deeds of conveyance in the law for the 
same, in fee-simple, and out of the money arising from such sale, to retain 
the principal and interest which shall then be due on the said bond or obli¬ 
gation, together with the costs and charges of advertisement and sale of the 
said premises, rendering the overplus of the purchase-money (if any there 
shall be) unto the said party of the first part, his heirs, executors, adminis¬ 
trators, or assigns ; which sale, so to be made, shall forever be a perpetual 
bar, both in law and equity, against the said party of the first part, and his 
heirs and assigns, and all other persons claiming or to claim the premises or 
any part thereof, by, from, or under him or them, or either of them. 

And it is Expressly Agreed by and between the parties to these pres¬ 
ents, that the said party of the first part shall and will keep the buildings 
erected and to be erected upon the lands above conveyed, insured against 
loss and damage by fire, by insurers approved by the said party of the second 
part, and in an amount approved by the said party of the second part, and 
assign the policy and certificates thereof to the said party of the second part; 
and in default thereof, it shall be lawful for the said party of the second part 
to effect such insurance, and the premium and premiums paid for effecting 
the same shall be a lien on the said mortgaged premises, added to the amount 
of the said bond or obligation, and secured by these presents, and payable on 
demand with interest at the rate of per cent, per annum. 

In Witness Whereof, the parties to these presents have hereunto inter¬ 
changeably set their hands and seals the day and year first above written. 

(Signature of mortgagor.) {Seal.) 

{Signature of mortgagee?) {Seal.) 

Sealed and Delivered in the Presence of 


FORMS OF MORTGAGES, ETC. 


55 7 


State of 

County. 

On the day of in the year one thousand eight 

hundred and before me personally came the 

individuals described in, and who executed the foregoing instrument, and 
acknowledged that they executed the same as their free act and 

deed. 



( 177 .) 


(Signature.) 


Mortgage to Executor, with Power of Sale. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between (name, resi¬ 

dence, and occupation of the mortgagor) party of the first part, and (name 
and residence of the mortgagee) executor of the last will and testament of 
(name and residence of the testator) deceased, of the second part; whereas, 
the said party of the first part is justly indebted to the said party of the 
second part in the sum of lawful money of the United States of 

America, secured to be paid by a certain bond or obligation bearing even date 
with these presents, in the penal sum of lawful money as afore¬ 

said, conditioned for the payment of the said first-mentioned sum (state the 
terms of the payment, and if the bond was made to the testator, state that) 
as by the said bond or obligation and the condition thereof, reference being 
thereunto had, may more fully appear. 

Now this Indenture Witnesseth, That the said party of the first part, 
for the better securing the payment of the said sum of money mentioned in 
the condition of the said bond or obligation with interest thereon, according 
to the true intent and meaning thereof, and also for and in consideration of 
the sum of one dollar, to him in hand paid by the said party of the second 
part, at or before the ensealing and delivery of these presents, the receipt 
whereof is hereby acknowledged, has granted, bargained, sold, aliened, 
released, conveyed, and confirmed, and by these presents does grant, bargain, 
sell, aliene, release, convey, and confirm, unto the said party of the second 
part, and his successors and assigns forever, all (here describe carefully the 
land or premises granted, as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in anywise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues, and profits thereof: 
and also all the estate, right, title, interest, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, and to the same, and every part and parcel thereof with the 
appurtenances. To have and to hold the above granted, bargained, and 
described premises, with the appurtenances, unto the said party of the 
second part, his successors and assigns, to their only proper use, benefit, 
and behoof forever. Provided always, and these presents are upon this 


MORTGAGES OF LAND. 


558 

express condition, that if the said party of the first part, or his heirs, 
executors, or administrators, shall well and truly pay unto the said party of 
the second part, or his successors or assigns, the said sum of money 
mentioned in the condition of the said bond or obligation, and the interest 
thereon at the time, and in the manner mentioned in the said condition, 
according to the true intent and meaning thereof, that then these presents, 
and the estate hereby granted, shall cease, determine, and be null and void. 
And the said party of the first part, for himself and his heirs, executors, 
and administrators, does covenant and agree to pay unto the said party of 
the second part, his successors or assigns, the said sum of money and 
interest, as mentioned above, and expressed in the condition of the said 
bond. And if default shall be made in the payment of the said sum of 
money above mentioned, or the interest that may grow due thereon, or of 
any part thereof, that then and from thenceforth it shall be lawful for the 
said party of the second part, his successors and assigns, to enter into and 
upon all and singular the premises hereby granted, or intended so to be, and 
to sell and dispose of the same, and all benefit and equity of redemption of 
the said party of the first part, or his heirs, executors, administrators, or 
assigns therein, at public auction, according to law. And as the attorney or 
attorneys of the said party of the first part, for that purpose by these pres¬ 
ents duly authorized, constituted, and appointed, to make and deliver to the 
purchaser or purchasers thereof a good and sufficient deed or deeds of con¬ 
veyance in the law for the same, in fee-simple, and out of the money arising 
from such sale, to retain the principal and interest which shall then be due 
on the said bond or obligation, together with the costs and charges of 
advertisement and sale of the said premises, rendering the overplus of the 
purchase-money (if any there shall be) unto the said party of the first part, 
his heirs, executors, administrators, or assigns; which sale, so to be made, 
shall forever be a perpetual bar, both in law and equity, against the said 
party of the first part, his heirs and assigns, and all other persons claiming 
or to claim the premises, or any part thereof, by, from, or under him, them, 
or any of them. 

In Witness Whereof, the parties to these presents have hereunto set 
their hands and seals the day and year first above written. 

( Signatures .) {Seals.) 

Signed ’ Sealed,\ and Delivered in Presence of 

State of 

County. 

On the day of in the year one thousand eight hundred 

and before me personally came the individuals 

described in, and who executed the foregoing instrument, and 
acknowledged that they executed the same as their free act and deed. 

{Signature.) 



559 


FORMS OF MORTGAGES , ETC. 

( 178 .) 

Mortgage of a Lease. 

This Indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, and occu¬ 

pation of mortgagor) party of the first part, and (name, residence, and 
occupation of mortgagee ) party of the second part: Whereas, (name, resi¬ 
dence, and occupation of the lessor of the lease to be mortgaged) did, by a 
certain indenture of lease, bearing date the day of in the 

year one thousand eight hundred and demise, lease, and to 

farm let, unto the said party of the first part, and to his executors, adminis¬ 
trators, and assigns, all and singular the premises hereinafter mentioned and 
described, together with their appurtenances : To have and to hold the same 
unto the said party of the first part, and to his executors, administrators, 
and assigns, for and during and until the full end and term of 
years, from the day of and fully to be complete 

and ended, yielding and paying therefor unto the said (name of the lessor) 
and to his heirs, executors, administrators, or assigns, the yearly rent or sum 
of (state the rent, and the times, or terms of payments). 

And Whereas, The said party of the first part is justly indebted to the 
said party of the second part, in the sum of dollars, lawful money 

of the United States of America, secured to be paid by his certain bond or 
obligation bearing even date with these presents, in the penal sum of 
dollars, lawful money as aforesaid, conditioned for the payment of the said 
first-mentioned sum of ( here give the amount of the debt to be paid) as by 
the said bond or obligation and the condition thereof, reference being there¬ 
unto had, may more fully appear. 

Now this Indenture Witnesseth, That the said party of the first part, 
for the better securing the payment of the said sum of money mentioned in 
the condition of the said bond or obligation, with interest thereon, accord¬ 
ing to the true intent and meaning thereof, and also for and in consideration 
of the sum of one dollar, to him in hand paid, by the said party of the 
second part, at or before the ensealing and delivery of these presents, the 
receipt whereof is hereby acknowledged, has granted, bargained, sold, 
assigned, transferred, and set over, and by these presents does grant, 
bargain, sell, assign, transfer, and set over unto the said party of the second 
part, the estate or premises leased and transferred by said indenture of 
lease, that is to say (here describe the premises in the same manner in which 
they are described in the lease), together with all and singular the edifices, 
buildings, rights, members, privileges, and appurtenances thereunto belong¬ 
ing, or in anywise appertaining ; and also all the estate, right, title, interest, 
term of years yet to come and unexpired, property, possession, claim, and 
demand whatsoever, as well in law as in equity, of the said party of the first 
part, of, in, and to the said demised premises, and every part and parcel 
thereof, with the appurtenances; and also the said indenture of lease, and 
every clause, article, and condition therein expressed and contained. 


MORTGAGES OF LAND. 


560 

To Have and to Hold the said indenture of lease, and other hereby 
granted premises, unto the said party of the second part, his executors, 
administrators, and assigns, to his and their only proper use, benefit, and 
behoof, for and during all the rest, residue, and remainder of the said term of 
years yet to come and unexpired ; subject, nevertheless, to the rents, cove¬ 
nants, conditions, and provisions in the said indenture of lease mentioned. 

Provided Always, And these presents are upon this express condi¬ 
tion, that if the said party of the first part shall well and truly pay unto the 
said party of the second part the said sum of money mentioned in the con¬ 
dition of the said bond or obligation, and the interest thereon, at the time 
and in the manner mentioned in the said condition, according to the true 
intent and meaning thereof, that then and from thenceforth these presents, and 
the estate hereby granted, shall cease, determine, and be utterly null and 
void, anything hereinbefore contained to the contrary in anywise notwith¬ 
standing. And the said party of the first part does hereby covenant, grant, 
promise, and agree to and with the said party of the second part, that 
he shall well and truly pay unto the said party of the second part the said 
sum of money mentioned in the condition of the said bond or obligation, 
and the interest thereon, according to the condition of the said bond or obliga¬ 
tion. And that the said premises hereby conveyed now are free and clear of 
all incumbrances whatsoever, and that the said party of the first part has good 
right and lawful authority to convey the same in manner and form hereby 
conveyed. And if default shall be made in the payment of the said sum of 
money above mentioned, or in the interest which shall accrue thereon, or of 
any part of either, that then and from thenceforth it shall be lawful for the 
said party of the second part, and his assigns, to sell, transfer, and set over 
all the rest, residue, and remainder of the said term of years then yet to 
come, and all other the right, title, and interest of the said party of the first 
part, of, in, and to the same, at public auction, according to the act in such case 
made and provided : and as the attorney of the said party of the first part, 
for that purpose by these presents duly authorized, constituted, and appointed, 
to make, seal, execute, and deliver to the purchaser or purchasers thereof, a 
good and sufficient assignment, transfer, or other conveyance in the law, 
for the same premises, with the appurtenances ; and out of the money 
arising from such sale, to retain the principal and interest which shall then 
be due on the said bond or obligation, together with the costs and charges of 
advertisement and sale of the same premises, rendering the overplus of the 
purchase-money (if any there shall be) unto the said party of the first part, 
or his assigns; which sale, so to be made, shall be a perpetual bar, both in 
law and equity, against the said party of the first part, and against all 
persons claiming or to claim the premises, or any part thereof, by, from, or 
under him or them, or any of them. 

In Witness Whereof, The said party of the first part to these presents 
has hereunto set his hand and seal the day and year first above written, 

( Signature .) (Seal.) 

Signed\ Sealed\ and Delivered in the Prese7ice of 


FORMS OF MORTGAGES , ETC. 


561 


State of 
County of 

On the day of in the year one thousand eight 

hundred and before me personally came who is 

known to me to be the individual described in, and who executed the fore¬ 
going instrument, and acknowledged that he executed the same as 

his free act and deed. 



( 179 .) 


( Signature.) 


Mortgagee’s Deed, under a Power of Sale. 

This Indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name 

and occupation of the mortgagee) of the County of and State of 

party of the first part, and (name and occupation of the 
grantee) of the County of and State of of the 

second part. 

Witnesseth, That whereas (name and occupation of the owner and 
mortgagor who gave to the mortgagee the power now exercised) of the 
County of and State of did, by a certain deed, 

dated the day of A.D. 18 , which deed is recorded 

in the Recorder’s office of the County of in the State of 

on the day of A.D. 18 , in book of 

at page , grant, sell, and convey to the said party of the first part all the 
premises hereinafter described, to secure the payment of a certain 

debt (or note , or bond) in said deed particularly mentioned, and upon certain 
terms in said deed particularly declared; and whereas default hath been 
made in the payment of said debt (note or bond), the said premises were, by 
said party of the first part, duly advertised for public sale at the door 
of the court-house • in the County of and State of 

on the day of A.D. 18 , in the manner 

prescribed by said deed, and were, upon the day and year and at the place 
last mentioned aforesaid, in pursuance of said notice, sold at public sale, 
and at said sale the said party of the second part was the highest and best 
bidder therefor, and bid for the tract first hereinafter named, the sum of 
dollars. 

Now, therefore, These presents .witness, that the said party of the first 
part, in pursuance of the power and authority in him vested in and by the 
said deed, and in consideration of the sum of dollars, to the 

said party of the first part paid by the said party of the second part, the 
receipt whereof is hereby acknowledged, hath released and quitclaimed, and 
doth hereby convey, remise, release, and quitclaim to the said party of the 
second part, his heirs and assigns forever, all the right, title, and interest, 
as well in law as in equity, which the said party of the first part hath 
acquired by virtue of the deed above mentioned, of, in, and to all that certain 
36 


562 MORTGAGES OF LAND. 

tract , piece , or parcel of land situated in the County of 

and State of and described as follows, to wit, 

{here describe the premises as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belongingor in anywise appertaining, and the reversions, 
remainders, rents, issues, and profits thereof; and also all the estate, right, 
title, interest, claim, and demand whatsoever, as well in law as in equity, of 
the said party of the first part, of, in, and to the same, and any and every 
part thereof, with the appurtenances, which the said party of the first part 
acquired by virtue of said deed : 

To Have and to Hold the aforesaid right, title, and interest of the 
said party of the first part, unto the said party of the second part, his heirs 
and assigns forever, as full and absolutely as the said party of the first part 
can, by virtue of the power and authority in him by said deed vested, con¬ 
vey the same. 

In Witness Whereof, The party of the first part hath hereto set his 
hand and seal the day and year first above written. 

(Signature of seller .) (Seal.) 

Signed, Sealed, and Delivered in Presence of 


State of 

County. 

On the day of eighteen hundred and , 

before me of the County of in the State of 

appeared who is personally known to me to be the real person 

whose name is subscribed to the foregoing instrument of writing, as having 
executed the same, and then acknowledged the execution thereof as his 
free act and deed, for the uses and purposes herein mentioned. 

( Signature .) 



( 180 .) 


Mortgage Deed, to Secure a Bond with Warrant, in use in 

Pennsylvania. 

This Indenture, Made the day of 

in the year of our Lord one thousand eight hundred and 
between {name, residence, and occupation of the debtor who is obligor of the 
Bond) of the first part, and {name, residence , and occupation of the creditor 
who is the obligee of the Bond ) of the other part, witnesseth, that 

Whereas, the said in and by obliga¬ 
tion or writing obligatory under hand and seal duly executed, 

bearing even date herewith, stand bound unto the said 
in the sum of lawful money of the United States of 

America, conditioned for the payment of the just sum of 

lawful money as aforesaid, in together with interest 

thereon, payable at the rate of six per cent per annum. 


FORMS OF MORTGAGES, ETC. 


5<53 

until such time as a higher rate becomes lawful, and immediately thereafter 
at the highest rate, not exceeding per cent., legally chargeable. Together 
with all taxes and charges in nature thereof, that maybe laid or levied upon 
the said obligation, or this indenture of mortgage, or the principal or inter¬ 
est moneys thereby secured, immediately upon their assessment, without any 
fraud or further delay. 

Provided, However, and it is hereby expressly agreed, that if at any 
time default shall be made in the payment of interest as aforesaid, for 
the space of days after any payment 

thereof shall fall due, or in the payment of any tax or charge as afore¬ 
said, for the space of days after notice in writing of its 

assessment shall be left upon the premises hereinafter described, then and 
in such case the whole principal debt aforesaid shall, at the option of the said 
obligee executors, administrators, or assigns, become due and 

payable immediately ; and payment of said principal debt, and all interest 
thereon, may be enforced and recovered at once, anything therein contained 
to the contrary notwithstanding. 

And Provided Further, however, and it is hereby expressly agreed, 
that if at any time thereafter, by reason of any default in payment, either of 
said principal sum at its maturity, or of said interest or 

of taxes and charges, within the time specified, a writ of fieri facias is prop¬ 
erly issued upon the judgment obtained upon said obligation, or by virtue of 
said warrant of attorney, or a writ of scire facias is properly issued upon 
this indenture of mortgage, an attorney’s commission for collection, viz.: 

per cent., shall be payable, and shall be recovered in addition to 
all principal, interest, and taxes then due, besides cost of suit, as in and 
by the said recited obligation and the condition thereof, relation being 
thereunto had, may more fully and at large appear. 

How this Indenture Witnesseth, that the said as 

well for and in consideration of the aforesaid debtor principal sum of 
and for the better securing the payment of the same, with interest as afore¬ 
said, unto the said executors, administrators, and assigns, 

in discharge of the said recited obligation, as for and in consideration of the 
further sum of one dollar unto in hand well and truly paid by the said 

at and before the sealing and delivery hereof, the receipt 
whereof is hereby acknowledged, granted, bargained, sold, aliened, 

enfeoffed, released, and confirmed, and by these presents grant, bargain, 
sell, aliene, enfeoff, release, and confirm unto the said heirs and 

assigns, (here describe the land or premises granted , substantially as in 
Form 107). 

Together with all and singular the ways, waters, 

water-courses, rights, liberties, privileges, improvements, hereditaments, and 
appurtenances whatsoever thereunto belonging, or in anywise appertaining, 
and the reversions and remainders, rents, issues, and profits thereof, 

To Have and to Hold the said hereditaments and prem- 


MORTGAGES OF LAND. 


564 

ises hereby granted, or mentioned and intended so to be, with the appurte¬ 
nances, unto the said heirs and assigns, to 

and for the only proper use and behoof of the said heirs 

and assigns forever. 

Provided Always, nevertheless, that if the said {name of the creditor and 
obligor ) heirs, executors, administrators, or assigns, do and shall well and 
truly pay, or cause to be paid, unto the said executors, 

administrators, or assigns, the aforesaid debt or principal sum of 
on the day and time hereinbefore mentioned and appointed 

for payment of the same, together with interest and taxes as aforesaid, 
without any fraud or further delay, and without any deduction, defalcation, 
or abatement to be made of anything, for or in respect of any taxes, 
charges, or assessments whatsoever, that then, and from thenceforth, as 
well this present indenture, and the estate hereby granted, as the said 
recited obligation shall cease, determine, and become void, anything here¬ 
inbefore contained to the contrary thereof in anywise notwithstanding. 

And Provided, Also, that it shall and may be lawful for the said 
executors, administrators, or assigns, when and as soon 
as the principal debt or sum hereby secured shall become due and payable 
as aforesaid, to wit: on the day of 

Anno Domini one thousand eight hundred and or in case 

default shall be made for the space of days in the payment of 

interest on the said principal sum, after any 

payment thereof shall fall due, or in the payment of any tax or charge as 
aforesaid, for the space of days after notice in writing of 

its assessment shall be left upon the above described premises, to sue out 
forthwith a writ or writs of scire facias upon this indenture of mortgage 
and to proceed thereon to judgment and execution, for 
the recovery of the whole of said principal debt, and all interest and taxes 
due thereon, together with an attorney’s commission for collection, viz., 
per cent., besides costs of suit, without further stay, any law, usage, 
or custom to the contrary notwithstanding. 

In Witness Whereof, The said parties to these presents have hereunto 
interchangeably set their hands and seals. Dated the day and year first 
above written. 

{Seals.) 

Sealed and Delivered in the Presence of us , 

On the day of Anno Domini 18 , before 

me the above named personally appeared 

and in due form of law acknowledged the above Indenture of Mortgage 
to be act and deed, and desired the same might be recorded 

as such. 

Witness my hand and official seal the day and year aforesaid. 

(Signature.) (Seal.) 


FORMS OF MORTGAGES, ETC. 


565 


( 181 .) 

Bond with 'Warrant of Attorney, Referred to in the pre¬ 
ceding Form 180. 

Know all Men by these Presents, That (name, residence, and occupa¬ 
tion of the debtor) (hereinafter called the obligor ) held and 

firmly bound unto (name, residence, and occupation of the creditor) (herein¬ 
after called the obligee ) in the sum of lawful money of the 

United States of America, to be paid to the said obligee certain 

attorney, executors, administrators, or assigns, to which payment well and 
tiuly to be made, do bind and oblige heirs, executors, 

and administrators, firmly by these presents. 

Sealed with seal. Dated the day of 

in the year of our Lord one thousand eight hundred and 

The Condition of this Obligation is Such, That if the above boun- 
den obligor , heirs, executors, or administrators, or any of them, shall 
and do well and truly pay, or cause to be paid, unto the above named ob¬ 
ligee , certain attorney, executors, administrators, or assigns, the just 
sum of lawful money as aforesaid, in 

together with interest thereon, 
payable at the rate of six per cent, per annum, 

until such time as a higher rate becomes lawful, and immediately there¬ 
after at the highest rate, not exceeding per cent., legally chargeable, 

together with all taxes, and charges in nature thereof, that may be laid or 
levied upon this obligation, or upon the accompanying indenture of mort¬ 
gage, or the principal or interest moneys hereby secured, immediately upon 
their assessment, without any fraud or further delay; then the above obli¬ 
gation to be void, or else to be and remain in full force and virtue : 

Provided, however, and it is hereby expressly agreed, that if at any time 
default shall be made in payment of interest as aforesaid, 
for the space of days after any payment thereof 

shall fall due, or in the payment of any tax or charge, as aforesaid, for 
the space of days after notice in writing of its assessment 

shall be left upon the premises described in the accompanying indenture of 
mortgage, then and in such case the whole principal debt aforesaid shall, at 
the option of the said obligee , executors, administrators, or assigns, 
become due and payable immediately, and payment of said principal debt, 
and all interest thereon, may be enforced and recovered at once, anything 
herein contained to the contrary notwithstanding. 

And Provided Further, however, and it is hereby expressly agreed that 
if at any time hereafter, by reason of any default in payment, either of said 
principal sum at its maturity, or of said interest, or of 

taxes and charges, within the time specified, a writ of fieri facias is properly 
issued upon the judgment obtained upon this obligation, or by virtue of the 
warrant of attorney hereto attached, or a writ of scire facias is properly 


MORTGAGES OF LAND. 


566 

issued upon the accompanying indenture of mortgage, an attorney’s com¬ 
mission for collection, viz., per cent., shall be payable, and shall be 
recovered in addition to all principal, interest, and taxes then due, besides 
costs of suit. And it is hereby declared and agreed that the said debt or 
principal sum of is the same which, by an inden¬ 

ture of mortgage of even date herewith, made between the above-named 
obligor and obligee is secured upon 

( Signature .) (Seal.) 

Sealed and Delivered in the Presence of us. 

To Attorney of the Court of Common Pleas at 

Philadelphia, in the County of Philadelphia, in the State of Pennsylva¬ 
nia, or to any other Attorney of the said Court, or any other Court there 
or elsewhere. 

Whereas, in and by a certain obligation bearing even date here¬ 
with, do stand bound unto in the sum of 

lawful money of the United States of America, conditioned 
for the payment of the just sum of lawful 

money as aforesaid, in together with interest 

thereon, payable at the rate of six per cent, per annum, 

until such time as a higher rate becomes lawful, and immediately thereafter 
at the highest rate, not exceeding per cent, legally chargeable. To¬ 
gether with all taxes and charges in nature thereof that may be laid or levied 
upon said obligation, or upon the accompanying indenture of mortgage, or 
the principal or interest moneys thereby secured, immediately upon their 
assessment; it being the same debt or principal sum which, by an indenture 
of mortgage of even date herewith, made between the above-named obli¬ 
gor and obligee is secured upon 

Provided, however, and it is hereby expressly agreed, that if at any 
time default shall be made in payment of interest as aforesaid, 
for the space of days after any payment thereof 

shall fall due, or in the payment of any tax or charge, as aforesaid, for the 
space of days after notice in writing of its assessment 

shall be left upon the premises described in the accompanying Indenture of 
Mortgage, then and in such case, the whole principal debt aforesaid shall, at 
the option of the said obligee, executors, administrators, or 

assigns, become due and payable immediately, and payment of said principal 
debt, and all interest thereon, may be enforced and recovered at once, any¬ 
thing therein contained to the contrary notwithstanding. 

And Provided Further, however, and it is thereby expressly agreed, 
that if at any time thereafter, by reason of any default in payment, either of 
said principal sum at its maturity, or of said interest 

or of taxes and charges, within the time specified, a writ of fieri facias is 
properly issued upon the judgment obtained upon said obligation, or by vir¬ 
tue of this warrant, or a writ of scire facias is properly issued upon the 


FORMS OF MORTGAGES , ETC. tfy 

accompanying indenture of mortgage, an attorney’s commission for collec¬ 
tion, viz., per cent, shall be payable, and shall be recovered in addition 
to all principal, interest, and taxes then due, besides costs of suit. 

These are to desire and authorize you, or any of you, to appear for 

heirs, executors, or administrators, in the said court or else¬ 
where, in an action of debt there or elsewhere brought, or to be brought, 
against heirs, executors, or administrators at the suit of the said 

obligee , executors, administrators, or assigns, on the said 

obligation, as of anytime present, or any other subsequent term or time else¬ 
where to be held, and confess judgment thereupon against heirs, 

executors, or administrators, for the sum of lawful 

money of the United States of America, debt, besides costs of suit, and an 
attorney’s commission of per cent, in case payment has to be en¬ 

forced by process of law, as aforesaid, by non sunt informatus , Nihil dicit, 
or otherwise, as to you shall seem meet; and for your, or any of your so 
doing, this shall be your sufficient warrant. And do hereby, 

for heirs, executors, and administrators, remise, release, 

and forever quitclaim unto the said obligee , certain attorney, 

executors, administrators, and assigns, all and all manner of error and errors, 
misprisions, misentries, defects, and imperfections whatever, in the entering 
of the said judgment, or any process or proceedings thereon or thereto, or 
in anywise touching or concerning the same. 

In Witness Whereof, have set hand and seal this 

day of in the year of our Lord one thousand eight 

hundred and 

(, Signatures .) {Seals.) 

Sealed and Delivered in the Presence of ns, 


( 182 .) 

Mortgage Deed in use in Maryland. 

This Mortgage, Made this day of in the 

year one thousand eight hundred and by (name, 

residence, and occupation of the grantor) of County, in 

the State of Maryland, Witnesseth : 

Whereas, The said (na?ne of the mortgagor, with his occupation and 
residence) has given to (name, residence, and occupation of the mortgagee) 
his promissory note of hand (or bond) (here describe the note or bond or shnple 
obligation to secure which this mortgage is given, by date, amount, time of 
pay7ii£iit, and other terms, if there are any). 

Now this Mortgage Witnesseth, That in consideration of the prem¬ 
ises, and of the sum of one dollar, the said do 

grant unto the said in fee-simple, all that lot, 

tract, parcel, or parcels of land situate in the County and State aforesaid 
(here describe with care the land or premises mortgaged, as directed in 
For?n 107). 


MORTGAGES OF LAND. 


568 

Together with the buildings and improvements thereupon, and the rights, 
ways, waters, privileges, appurtenances, and advantages thereto belonging, 
or in anywise appertaining. 

Provided, That if the said executors, administrators, 

or assigns, shall well and truly pay to the said 
the said sum of on or before the 

day of one thousand eight hundred and 

together with the legal interest thereon annually, and shall per¬ 
form all the covenants herein on part to be performed, then this 

mortgage shall be void. 

And the said {name of the mortgagor) do covenant and promise to 
pay to the said on the day of 

one thousand eight hundred and the 

said sum of together with the legal interest thereon 

annually. 

And the said do hereby further covenant 

that in case of any default being made in any condition of this mortgage, 
then the whole mortgagedebt hereby intended to be secured shall be deemed 
due and demandable. 

And the said do further covenant to 

insure, and, pending the existence of this mortgage, to keep insured, the im¬ 
provements on the hereby mortgaged ground, to the amount of at least 

dollars, and to cause the policy to be effected 
thereon to be so framed or indorsed as, in case of fire, to inure to the benefit 
of the said , representatives, or assigns, 

to the extent of lien or claim hereunder. 

Witness, hand and seal the day and year first above written. 

Test : 

{Names of the witnesses.) 

{Signatures?) {Seals.) 


State of Maryland, 

>• To wit. : 

Harford County, ) 

I Hereby Certify, That on this day of in 

the year one thousand eight hundred and before the sub¬ 

scriber, a Justice of the Peace of the State of Maryland, in and for Harford 
County, aforesaid, personally appeared and 

acknowledged the foregoing mortgage to be act; and now, at 

the same time, before me, personally appeared also 

the within named mortgagee and made oath on the Holy Evangelists of 
Almighty God that the consideration set forth in the foregoing mortgage is 
true and bona, fide , as therein stated. 


FORMS OF MORTGAGES, ETC. 


569 


An Assignment of Mortgage. 

I hereby assign the above or within mortgage to ( the assignee ). 

Witness my hand and seal, this of 

( Signature .) (Seal.) 

Release on Satisfaction of a Mortgage. 

I hereby release the above (or within) mortgage. 

Witness my hand and seal, this day of 

(Signature.) (Seal.) 

( 183 .) 

Mortgage Deed to Secure a Bond, in use in South 

Carolina. 

The State of South Carolina. 

To all whom these Presents may concern, I (or we) (name, residence, 
and occupation of grantor or grantors), send greeting: 

Whereas, the said in and by certain bond or 

obligation bearing date the stand firmly held and bound unto 

(name of grantee) in the penal sum of conditioned for the 

payment of the full and just sum of as in and by the said bond 

and condition thereof, reference being thereunto had, will more fully 
appear. 

Now Know all Men, That the said in consideration of the 

said debt and sum of money aforesaid, and for the better securing the 
payment thereof to the said accQrding to the condition of the 

said bond , and also in consideration of the further sum of three dollars to 
the said in hand well and truly paid by the said 

at and before the sealing and delivery of these presents, the receipt whereof 
is hereby acknowledged, have granted, bargained, sold, and released, and by 
these presents do grant, bargain, sell, and release unto the said (describe 
carefully the land and premises granted, substantially as directed in Form 
107.) 

Together with all and singular the rights, members, hereditaments, and 
appurtenances to the said premises belonging, or in anywise incident 01 
appertaining. 

To Have and to Hold all and singular the said premises unto the said 
heirs and assigns forever. And do hereby bind heirs, 

executors, and administrators, to warrant and forever defend all and singular 
the said premises unto the said heirs and assigns, from and 

against heirs, executors, administrators, and assigns, 

lawfully claiming, or to claim the same, or any part thereof. 

And it is agreed, by and between the said parties, that the said mortgagor, 
heirs, executors, or administrators, shall and will forthwith insure the 
house and buildings on said lot, and keep the same insured, from loss or 


570 


MORTGAGES OF LAND. 


damage by fire, and assign the policy of insurance to the said 
executors, administrators, or assigns; and in case he or they shall at any 
time neglect or fail so to do, then the said mortgagee, execu¬ 

tors, administrators, or assigns, may cause the same to be insured in their 
own name, and reimburse themselves for the premium and expense of such 
insurance under the mortgage. 

Provided Always, nevertheless, and it is the true intent and meaning of 
the parties to these presents, that if the said do and shall well 

and truly pay, or cause to be paid, unto the said the said debt 

or sum of money aforesaid, with the interest thereon, if any shall be due, 
according to the true intent and meaning of said bond and condition there¬ 
under written, then this deed of bargain and sale shall cease, determine, and 
be utterly null and void, otherwise it shall remain in full force and vigor. 

And it is agreed, by and between the said parties, that to hold and 

enjoy the said premises until default of payment shall be made. 

Witness hand and seal this day of , in the 

year of our Lord one thousand eight hundred and and in the 

year of the sovereignty and independence of the United States 

of America. 

( Signatures .) (Seals.) 

Signed\ Sealed,\ and Delivered in the Presence of, 

State of South Carolina, 

County. 

Personally appeared before me, and made oath, that 

saw the within named sign, seal, and as act and deed, deliver 

the within written deed: and that with witnessed the 

execution thereof. 

Sworn to before me this day of 18 

( Signature .) 

State of South Carolina, ^ 

> Renunciation of Dower. 
County. ) 

I, do hereby certify unto all whom it may concern, that wife of 
the within named did this day appear before me, and upon being privately and 
separately examined by me, did declare that she does freely, voluntarily, and 
without any compulsion, dread, or fear of any person or persons whomsoever, 
renounce, release, and forever relinquish unto the within named heirs and 
assigns, all her interest and estate, and also all her right and claim of dower, 
of, in, or to all and singular the premises within mentioned and released. 

Given under my hand and seal, this day of Anno 

Domini 18 



( Signature .) 


FORMS OF MORTGAGES, ETC. 


571 


( 184 .) 

Mortgage Deed with Power of Sale, to Secure Debt, in 
use in G-eorgia. 

Georgia, ) 

County. j 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and between 

(name and occupation of grantor or grantors) of the County of of 

the one part, and {name and occupation of grantee or grantees) of the County 
of of the other part: 

Witnesseth, That the said for and in consideration of 

the sum of in hand paid, at and before the sealing and delivery 

of these presents, the receipt whereof is hereby acknowledged, ha granted, 
bargained, sold, aliened, conveyed, and confirmed, and by these presents 
do grant, bargain, sell, aliene, convey, and confirm unto the said 
heirs and assigns, all (here describe the land or premises granted, substan¬ 
tially as directed in Form 107). 

To Have and to Hold the said with all and singular the rights, 

members, and appurtenances thereunto appertaining, to the only proper use, 
benefit, and behoof of the said heirs, executors, admin¬ 
istrators, and assigns, in fee-simple ; and the said the said bargained, 

unto the said heirs, executors, administrators, and assigns, 

against the said heirs, executors, and administrators, and against all 

and every other person or persons, shall and will warrant and forever defend 
by virtue of these presents. 

And the said hereby agrees that if the debt to secure 

which this deed is made is not promptly paid at maturity according to the 
tenor and effect of the said made at the execution of this deed, then 

the said may, and by these presents authorized to sell at 

public outcry to the highest bidder, for cash, all of said property, or a suffi¬ 
ciency thereof to pay said indebtedness with the interest thereon and the 
costs of the proceeding, after advertising the time, place, and terms of sale 
in newspaper for days. And the said may 

make to the purchaser or purchasers of said property good and sufficient 
titles in fee-simple to the same, thereby divesting out of the said 
all right, title, and equity that may have in and to said property, and 

vesting the same in the purchaser or purchasers aforesaid. The proceeds of 
said sale are to be applied first to the payment of the said debt and interest 
and the expenses of this proceeding, the remainder, if any, paid to 

In Witness Whereof, The said and his wife, who 


572 


MORTGAGES OF LAND. 


hereby consents to the execution of this deed, have hereunto set their hands 
and affixed their seals, and delivered these presents, the day and year first 
above written. 

( Signatures.) {Seals.) 

Signed\ Sealed, and Delivered in Presence of us 

( 185 .) 

Mortgage to Secure a Promissory Note, in use in Kansas. 

This Indenture, Made this day of in the year of our 

Lord one thousand eight hundred and between {name and occu¬ 
pation of grantor or grantors) of in the County of {residence) and 

State of , of the first part, and {name, residence, and occupation 

of grantee or grantees) of the second part: witnesseth, that the said part 
of the first part, in consideration of the sum of dollars, to 

duly paid, the receipt of which is hereby acknowledged, ha sold, and by 
these presents do grant, bargain, sell, and mortgage to the said part of the 
second part, heirs and assigns forever, all that tract or parcel of land 

situate in the County of and State of Kansas, described as follows, 

to wit: ( here describe accurately the land or premises granted, substantially 
as directed in Form 107), with the appurtenances, and all the estate, title, and 
interest of the said part of the first part therein. 

This grant is intended as a mortgage to secure the payment of the 
sum of dollars, according to the terms of certain 

. And this conveyance shall be void if such payment be made 
as is herein specified. But if default be made in said payment, or any part 
thereof, as provided, then this conveyance shall become absolute, and it shall 
be lawful for said part of the second part, executors, administrators, 

and assigns, at any time thereafter, to sell the premises hereby granted, or 
any part thereof, in the manner prescribed by law ; and out of all the moneys 
arising from such sale, to retain the amount then due for principal and 
interest, and also for statutory damages in case of protest, together with the 
costs and charges of making such sale, and per cent, on the 

amount secured by this mortgage, as a reasonable attorney’s fee for fore¬ 
closure hereof, and the overplus, if any there be, shall be paid by the part 
making such sale, to the said heirs or assigns; and for the said 

consideration, the said part of the first part hereby waive appraisement of 
said real estate. 

In Witness Whereof, The said part of the first part ha hereunto set 
hand and seal the day and year last above written. 

(. Signatures.) {Seals.) 

Signed, Sealed, and Delivered in the Presence of 
State of Kansas, 

County of 

Be it Remembered, that on this day of A.D. 18 

before me, in and for said County and State, came to 



FORMS OF MORTGAGES, ETC. 


573 

me personally known to be the same person who executed the foregoing 
instrument, and acknowledged the execution of the same. 

In Witness Whereof, I have hereunto subscribed my name and affixed 
my official seal on the day and year last above written. 

(. Signature.) (Seal.) 

( 186 .) 

Mortgage Deed in use in Missouri. 

Know all Men by these Presents, That ( name and occupation of the 
grantor or mortgagor and his wife) of the County of , in the State 

of Missouri, ha this day, for and in consideration of the sum of 
dollars to the said in hand paid, by (name and occupation of mortgagee) 

of the County of in the State of , the receipt whereof is hereby 

acknowledged, granted, bargained, and sold, and by these presents do grant, 
bargain, and sell unto the said the following described tracts or 

parcels of land, situate in the County of , in the State of Missouri, 

that is to say (here describe the premises mortgaged as directed in Form 107). 

To Have and to Hold the premises hereby conveyed, with all the rights, 
privileges, and appurtenances thereto belonging, or in anywise appertaining 
unto the said heirs and assigns forever, upon this express condition: 

Whereas, the said on the day of 18 , made, 

executed, and delivered to the said certain promissory note , in 

words and figures following, to wit: 

Now, if the said executor , or administrator , shall pay the 

sum of money specified in said note, and all the interest that may be due 
thereon, according to the tenor and effect of said note, then this conveyance 
shall be void; otherwise, it shall remain in full force and virtue in law, and 
the said or executor , or administrator may proceed to sell the 

property hereinbefore described, or any part thereof, at public vendue, to the 
highest bidder, at in the County of for cash in hand, 

first giving days’ public notice of the time, terms, and place of sale, 

and of the property to be sold, by advertisement ; and upon such 

sale, and the payment of the purchase money, shall execute and deliver a 
conveyance of the property so sold to the purchaser thereof; and any state¬ 
ment of fact or recital by the said in such conveyance, in 

relation to the advertisement, sale, receipt of the purchase money, or execu¬ 
tion of said conveyance, shall be received as prima facie evidence of the 
truth thereof, and the said shall, with the proceeds of the sale 

aforesaid, pay, first, the expenses of this trust, and, next, whatever may be 
in arrear and unpaid on said note, whether of principal or interest, and the 
balance (if any) shall be paid over to the said or his legal repre¬ 

sentatives. 

In Witness Whereof, have hereunto subscribed name , and 
affixed seal this day of 18 


(Signatures) (Seals.) 


574 


MORTGAGES OF LAND. 


State of Missouri, 

County of 

Be it Remembered, That and , who personally 

known to the undersigned, a within and for said county, to be the 

person whose name subscribed to the foregoing deed, as part 

thereto, this day appeared before me and severally acknowledged that 
executed and delivered the same as voluntary act and deed, for the 

uses and purposes therein mentioned. And the said being by me 

made acquainted with the contents of said deed, acknowledged, on an 
examination apart from her said husband, that she executed the same, and 
relinquishes her dower in the real estate therein mentioned, freely, and with¬ 
out compulsion or undue influence of her said husband. 

Given under my hand this day of A.D. 18 

( Signature .) 



( 187 .) 

Short Deed of Mortgage in use in Indiana. 

This Indenture Witnesseth: That I {name and occupation of grantor 
or grantors ) of {residence) County, in the State of do hereby mortgage 

and warrant to {name and occupatio 7 i of grantee or grantees) of {residence) 
County, in the State of the following real estate, in County, 

in the State of Indiana, to wit: {here describe the land or pretnises granted 
substantially as directed in Form 107), to secure the payment when 
become due of and the mortgagor expressly agree to pay the 

sum of money above secured, without relief from valuation laws. 

In Witness Whereof, The mortgagor ha hereunto set hand and 
seal this day of A.D. 18 

{Signatures.) (Seals.) 

State of Indiana, 

County. 

Before Me, a in and for said County, this 

day of , 18 , acknowledged the execution of the 

annexed mortgage. 

Witness my hand and seal, this day of ,18 

{Signature) {Seal.) 



( 188 .) 

Mortgage without Release of Dower or Homestead, in use 

in Wisconsin. 

This Indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name 

and occupation of grantor or grantors) of the County of State 

of of the first part, and (yiarne and occupation of the grantee or 


FORMS OF MORTGAGES, ETC. 


575 


grantees ) of the County of and State of of the second 

part, witnesseth, that the said part of the first part, for and in consideration 
of the sum of dollars to in hand paid by the part of the 

second part, the receipt of which is hereby acknowledged, ha granted, 
bargained, and sold, and by these presents do grant, bargain, sell, and 
convey unto the said part of the second part, and to heirs and assigns 
forever, all the following described real estate situate, lying, and being in 
the County of State of and known as being (here 

describe with sufficient care the land or premises granted, substantially as 
directed i?i Form 107). 

To Have and to Hold the above bargained premises with the appurte¬ 
nances, unto the said part of the second part, heirs and assigns forever, 
Provided always, and these presents are upon this express condition, that if 
the said part of the first part, heirs, executors, adminis¬ 

trators, and assigns, shall well and truly pay, or cause to be paid, to the said 
part of the second part, heirs, executors, administrators, or assigns 

the sum of according to the condition of certain 

bearing date executed by the 

said part of the first part, to the said part of the second part, as collateral 
security, then these presents and the said shall cease and be null 

and void. 

And the said do further covenant and agree, that 

will pay all taxes and assessments of every nature that may 
be assessed on said premises, previous to the day appointed in pursuance of 
any law of the State for sale of lands for taxes. And also will pay the sum 
of dollars, as Solicitor’s fees, in case of foreclosure of this 

mortgage, by reason of the non-performance of any of the conditions 
hereof by said part of the first part. And in case of the non-payment 
of said sum, or any part thereof, at the time or times above limited for the 
payment thereof, or in case of the non-payment of any taxes that 
may be assessed on said premises in manner aforesaid; then, and in either 
case, it shall be lawful for the said part of the second part, heirs, 

executors, administrators, or assigns, and the said part of the first part, 
do hereby covenant and agree, and by these presents empower and author¬ 
ize the said part of the second part, heirs, executors, administrators, or 
assigns, to grant, bargain, sell, release, and convey the said premises, with 
the appurtenances thereunto belonging, at public auction or vendue, and on 
such sale to make and execute to the purchaser or purchasers, his, her, or 
their heirs and assigns forever, good, ample, and sufficient deeds of convey¬ 
ance in the law, pursuant to the statute in such cases made and provided; 
and out of the moneys arising from such sale to retain the principal and 
interest which shall then be due on the said together with the 

costs and charges, and the said sum of dollars, Solicitor’s 

fees, as aforesaid; rendering the surplus money, if any there be, to the 
part of the first part, heirs, executors, administrators, or assigns, after 
deducting the costs of such vendue as aforesaid. 


MORTGAGES OF LAND. 


5/6 

In Witness Whereof, the said part of the first part ha hereunto set 
hand and seal , the day and year first above written. 

( Signatures .) {Seals.) 

Signed ’ Sealed\ and Delivered in Presence of 
State of 
County of 

Be it Remembered, That on the day of 18 , 

personally came before me the above named to me known 

to be the person who executed the foregoing mortgage, and acknowledged 
execution thereof to be free act and deed, for the uses and purposes 
therein mentioned. 

{Signature.) {Seal.) 

( 189 .) 

Mortgage Deed, with Release of Homestead and Dower, 
to Secure the Payment for Premises Sold, 
in use in Iowa. 

Know all Men by these Presents, That ( here insert name and occupa¬ 
tion of grantor or grantors) of County and State of 

in consideration of the sum of dollars, in hand paid, do hereby 

sell and convey unto {name and occupation of grantee or grantees) of 
County and State of the following described real estate, situated 

in the County of and State of to wit: {here describe 

carefully the land or premises granted ’ substantially as directed in Form 
107), containing acres, more or less, and hereby release 

all right of homestead and dower interest therein, and warrant the 

title thereto against the lawful claim of all persons whomsoever. 

The above sale and conveyance is however made upon the following 
express conditions : That if shall pay or cause to be paid the 

sum of dollars, according to the tenor and effect of 

certain promissory note , described as follows : 

bearing even date herewith and payable to the order of said with 

interest thereon from at the rate of per cent, per annum, 

payable annually, then the above sale and conveyance shall be void, 

but that otherwise it shall be and remain in full force and effect. 

And also agree that the failure to pay promptly when due any 

part of the moneys hereby secured, or any interest accruing thereon, 
according to the terms of said promissory note , or allowing any taxes 
assessed upon any part of the premises above described to become 
delinquent and remain unpaid, or permitting said premises or any part 
thereof to be sold for taxes, shall cause the entire principal sum hereby 
secured, and all interest accrued thereon, to become immediately due and 
payable, and the said may thereupon proceed at once to fore¬ 

close this mortgage for such entire principal sum, accrued interest and costs. 

And further agree in case of such foreclosure to pay a reasonable 



FORMS OF MORTGAGES, ETC. 


577 


sum as attorney’s fee, to be by the court fixed and determined, for fore¬ 
closing the same, which fee shall be included in the judgment in such fore¬ 
closure case. This mortgage is given to secure the purchase money of the 
premises hereinbefore described, and creates a lien for purchase money 
upon said premises in favor of said mortgagee. 

Dated this day of A.D. 18 . 


State of Iowa, 

County, 


ss. 


{Signatures) {Seals) 


Be it Remembered, That on this day of A.D. , 

before the undersigned, a within and for said County, personally 

appeared personally known to me to be the identical person 

whose name affixed to the above mortgage, as grantor thereto, 

and acknowledged the execution of the same to be voluntary act and 

deed. 


Witness my hand and seal. 

{Signature) {Seal) 

( 190 .) 

Mortgage Deed in use in Louisiana. 

[This being a peculiar deed, presenting some unusual difficulties in filling 
up the blanks, it is thought best to give a full copy of a carefully-prepared 
deed, as the same was drawn and executed in accordance with the law of 
Louisiana.] 


State of Louisiana, 

Parish and City of New Orleans. 

Be it Known, That on this third day of June, in the year of our Lord one 
thousand eight hundred and seventy and of the independence of the 
United States of America, the ninety-fourth. 

Before Me, Andrew Hero, Jr., a Notary Public in and for the Parish and 
City of New Orleans, State of Louisiana, duly commissioned and qualified, 
and in the presence of the witnesses hereinafter named and undersigned, 

Personally Came and Appeared ,—Antonio Corbett, of this city , who 
declared that he is justly and truly indebted unto Janies Thompson, also of 
this city , in the sum of eight hundred dollars , borrowed money this day had : 
in settlement and as evidence thereof the said Antonio Corbett has made and 
furnished his promissory note for like sum of eight hundred dollars , drawn 
to the order of and indorsed by himself, dated this day, and made payable at 
twelve months after date , with interest at the rate of eight per cent, per 
annum, from and after maturity, if not then paid, until final payment, which 
said note, after having been paraphed by me, the said Notary, to identify it, 
herewith, was delivered to the said Thompson , who hereby acknowledges the 
receipt thereof. 

Now, in order to secure the full and punctual payment of the said note, 

37 


578 


MORTGAGES OF LAND. 


in capital and interest, at maturity, the said Corbett moreover declared that 
he does by these presents specially mortgage and hypothecate in favor of the 
said James Thompson , his heirs and assigns, and of any and all such person 
or persons as may hereafter be the holder or holders of the said note , the 
following described property, to wit: 

A certain lot of ground, together with the buildings and improvements thereon, and 
all rights and privileges thereto belongings situate in the Faubourg Lafayette, Fourth 
District of this city, in the square numbered two hundred and eighty five, which is 
bounded by Liberty {late Ellen), Josephine, St. Andreev {formerly Gormley's Canal), 
and Franklin {late Fulton Avenue) streets, and designated as lot number six on a plan 
of the former city of Lafayette, and a sketch drawn by Hugh Grant, surveyor, wider 
date of the 13 th of March, 1848 , and annexed for reference to an act passed before L. 
R. Kenny, late a Notary in said parish of Jefferson, which said lot measures, in Ameri¬ 
can measure, twenty-seven feet front on said Liberty {late Ellen) street, by one hundred 
and twenty feet in depth, between parallel lines, being the same property which said 
mortgagor acquired by purchase from the widow and heirs of Henry Mumford, by an 
act passed before William Shannon, a Notary in this city, on the 12 th day of March, 
eighteen hundred and sixty-seven. 

The said property is so to remain mortgaged and hypothecated until the full 
and final payment of the aforesaid note in capital and interest; the said mort¬ 
gagor hereby binding himself and his heirs not to alienate, deteriorate, nor 
encumber the same to the prejudice of these presents, which are accepted by 
said mortgagee. 

And the said Corbett further declared that he do^j by these presents bind 
and obligates hiinself to cause all and singular the buildings and improvements 
on the lot of ground afore described, to be insured and kept insured against the 
risk of fire, by one of the insurance companies of this city, in the sum of one 
thousand dollars , until the full and final payment of the afore described note , 
and to transfer and deliver unto the said mortgagee the policy or policies of 
such insurance or insurances ; in default whereof, said mortgagee, and any and 
all holders of said note , is and are hereby authorized to cause such insurance or 
insurances to be made and effected at the cost, charge, and expense of the 
said mortgagor. But this clause shall not be construed as obligatory on such 
holder or holders, or as making them liable for any loss, damage, or injury 
which may result from the non-insurance of the said buildings. 

And the said mortgagor further declared that he does by these presents 
consent, agree, and stipulate that in the event of the said note not being 
punctually paid at maturity, it shall be lawful for and he does hereby author¬ 
ize the said mortgagee, or any other holder or holders thereof, to cause all 
and singular the property hereinbefore described, and herein mortgaged, to 
be seized and sold under executory process (issued by any competent court) 
without appraisement, to the highest bidder, payable in cash ; the said mort¬ 
gagor herein expressly dispensing with all and every appraisement thereof, 
and by these presents waiving and renouncing the benefit of appraisement, 
and of all laws or parts of laws relative to the appraisement of movable or 
immovable effects, etc., seized and sold under executory or other legal 


FORMS OF MORTGAGES, ETC. 


579 

process, the said mortgagor hereby confessing judgment in favor of said 
mortgagee, and such person or persons who may be the holder or holders of 
said note for the full amount thereof, capital and interest, together with all 
costs, charges, and expenses whatsoever. 

And the said mortgagor further declares that he does, by these presents, 
bind and obligate himself and his heirs to pay and reimburse unto said mort¬ 
gagee, and such person or persons as may be the holder or holders of said 
note, all such lawyer’s or attorney’s fees, together with all such costs, charges, 
and expenses as said mortgagee, or any such holder or holders, shall or may 
incur or pay, in the event of the non-payment of said note at maturity : said 
attorney’s fees, however, to be fixed at Jive per cent, on the amount so in 
suit. 

Now, to secure the faithful performance of the foregoing obligation, and 
the reimbursement and payment of the said lawyer’s or attorney’s fees, 
costs, charges, and expenses aforesaid, and the reimbursement and payment 
of all premium or premiums as shall be paid by the said mortgagee, or any 
holder or holders of the aforesaid note, in causing insurance to be effected, 
on default of said mortgagor as aforesaid, the said mortgagor, by these 
presents, further specially mortgages and hypothecates the hereinbefore 
described property unto and in favor of said mortgagee, and all holders of 
said note. 

According to the annexed certificate of the Recorder of mortgages in and for this 
city and parish, of even date herewith, the afore described property is free from all 
mortgages or other incumbrances in the name of said Corbett, save the privilege for 
drainage, and the mortgage which he granted in favor of his vendors by his said act of 
purchase , to secure the payment of three hundred dollars and interest. And here the 
said Campbell declared, that as last holder and owner, he has received payment in full, 
at the execution hereof, of a certain promissory note for the sum of three hundred dol¬ 
lars, drawn by said Corbett, to the order of and indorsed by himself, dated the twelfth 
day of March, eighteen hundred and sixty-seven, and made payable at twelve months 
after date, with interest at the rate of eight per cent, per annum from date until final 
payment: Said note representing the amount, payment of which is secured by the above 
recited special mortgage: and said Campbell moreover declared that in consideration of 
the payment, he hereby cancels and annuls said mortgage, and authorizes and requires 
the Recorder of Mortgages in and for this parish to erase the inscription thereof from 
his books: Said note was defaced and cancelled by me, Notary, at the execution 
hereof. 

And now to these presents personally came and appeared Madam Mary 
Corbett, the wife, of law fid age, of the said Antonio Corbett , who, after hav¬ 
ing taken cognizance of the foregoing act, which I, the said Notary, care¬ 
fully read and explained to her, declared and said that she approves and rat¬ 
ifies the same, and that it is her wish and intention to release in favor of the 
said mortgagee the property herein described from the matrimonial, dotal, 
paraphernal, and other rights, and from any claims, mortgages, or privileges 
to which she is or may be entitled, whether by virtue of her marriage with 
her said husband or otherwise. 


580 


MORTGAGES OF LAND. 


Whereupon I, the said Notary, did inform the said Mrs. Corbett, apart 
and out of the presence and hearing of her husband, that by the laws of this 
State, the wife has a legal mortgage on the property of her husband : First, 
for the restitution of her dowry, and for the reinvestment of the dotal 
property sold by her husband, and which she brought in marriage, reckon¬ 
ing from the celebration of the marriage. Secondly, for the restitution and 
reinvestment of the dotal property by her acquired since marriage, whether 
by succession or donation, from the day the succession was opened, or the 
donation perfected. Thirdly, for nuptial presents. Fourthly, for debts 
by her contracted with her husband. And fifthly, for the amount of her 
paraphernal property alienated by her, and received by her husband, or oth¬ 
erwise disposed of for his individual interest: That in making her intended 
renunciation she would deprive herself irrevocably and forever of all rights 
of reclamation against the property herein described, whether under mort¬ 
gage privilege, or otherwise. 

And the said Mrs. Corbett did thereupon declare unto me, Notary, that 
she was fully aware of and acquainted with the nature and extent of the 
matrimonial, dotal, paraphernal, and other rights and privileges thus secured 
to her by law on the property of her said husband, and that she neverthe¬ 
less did persist in her intention of renouncing, and does formally renounce, 
not only all the rights, claims, and privileges hereinbefore enumerated and 
described, but all others of any nature and kind whatever, to which she is, 
or maybe, entitled by any laws now or heretofore in force in the State of 
Louisiana. 

And the said Antonio Corbett being now present, aiding, and authorizing 
the said Mrs. Corbett in the execution of these presents, she , the said Mrs. 
Corbett , did again declare that she did and does hereby make a formal renun¬ 
ciation and relinquishment of all her said matrimonial, dotal, paraphernal, 
and other rights, claims, and privileges, in favor of said mortgagee, binding 
herself and her heirs at all times to sustain and acknowledge the validity of 
this renunciation. 

Thus Done and Passed, in my office at New Orleans aforesaid, in the 
presence of Paul A. Roberts and George Be?ison, witnesses, both of this city, 
who hereunto sign their names with the parties, and me, the said Notary, 
the day and date aforesaid, said Mistress Corbett not knowing how to write 
or sign hei name, having hereto made her mark , after the same had been 
read and explained to her by me, Notary. 


Original signed ; 


fas. Campbell , 
Geo. Bay ley, 


her 

Mary X Corbett, 


mark. 


Antonio Corbett, 


{Seal) 


P. A. Winsor. 

Andrew Hero, Jr., Notary Public. 


A true copy of the original, on file, and of record in my office. 

Andrew Hero, Jr., Not. Pub. 

New Orleans, La., March 31, 1873. 


FORMS OF MORTGAGES, ETC. 

( 191 .) 

Satisfaction of Mortgage, in use in New Jersey. 

State of New Jersey, 

County of 

This is to Certify, That a certain indenture of mortgage, bearing date 
the day of one thousand eight hundred and made 

and executed by (name, residence, and occupation of mortgagor) to (name, 
residence, and occupation of mortgagee') to secure the payment of 
dollars, and in the office of the of the County of 

in Liber of Mortgages, page on the day of in 

the year one thousand eight hundred and at o’clock in the 

noon, has been paid and satisfied, and may be discharged of record. 

Witness hand and seal the day of A.D. 18 

( Signatures.) (Seals.) 

Sealed and Delivered in Presence of 

State of New Jersey, 

County of 

I, one of the 

day of A.D. one thousand eight hundred and before 

me personally appeared who, I am satisfied, the grantor 

mentioned in, and who executed the within certificate, and to whom I first 
made known the contents thereof; that thereupon acknowledged that 

had signed, sealed, and delivered the same as voluntary 

act and deed. upon a private examination, apart from her hus¬ 

band, before me, acknowledged that she had signed, sealed, and delivered 
the same as her voluntary act and deed, freely, without any fear, threats, 
or compulsion of her husband. 

(Signature?) (Seal.) 

( 192 .) 

Release of Deed of Trust, in use in Colorado. 

Know all Men by these Presents, That whereas (name, residence, 
and occupation of the mortgagor) of the County of in the State of 

Colorado, by his certain deed of trust, dated the day of 

A.D. 18 and duly recorded in the office of the County Clerk and Recorder 
of County, in the State of Colorado, on the day of 

A.D. 18 in book of said County Records, on page con¬ 

veyed to the undersigned (name and occupation of trustee in the trust deed) 
of the County of in the State of Colorado, as trustee 

certain real estate in said deed of trust described, in trust to secure to 
the payment of certain promissory note with interest, and all charges 
thereon, as in said deed of trust mentioned. 



do hereby certify that on the 



582 


MORTGAGES OF LAND. 


And Whereas, The said ha paid and fully satisfied said 

note together with all interest and charges thereon, according to its tenor ; 

Now, Therefore, At the request of the said as aforesaid, and 

in consideration of the premises, and in the further consideration of the sum 
of one dollar, to me in hand paid by the said the receipt whereof 

is hereby acknowledged, I trustee as aforesaid, do hereby remise, 

release, and forever quitclaim unto him, the said and 

heirs and assigns forever, all the right, title, and interest which I have in and 
to the said real estate, as the trustee in said deed of trust mentioned; and 
more particularly described as follows, to wit: ( describe the la?id or premises 
mortgaged and now released\ as they are described in the trust deed or mort¬ 
gage) situate, lying, and being in the County of and State of 

Colorado. 

To Have and to Hold the same, together with all and singular the 
privileges and appurtenances unto the said his heirs and assigns 

forever. And further, that the said trust deed is, by these presents, to be 
considered as fully and absolutely released, canceled, and forever discharged. 

Witness my hand and seal, this day of A.D. 18 

{Signature.) {Seal.) 

Signed\ Sealed, and Delivered in the Presence of 
State of Colorado, 

County of 

I, in and for said county, in the State aforesaid, do hereby certify 

that personally known to me as the person whose name is subscribed 
to the annexed deed, appeared before me this day in person and acknowl¬ 
edged that he signed, sealed, and delivered the said instrument of writing as 
his free and voluntary act, for the uses and purposes therein set forth. 

Given under my hand and seal, this day of A.D. 18 

{Signature.) {Seal.) 

( 193 .) 

Brief Release of Mortgage, in use in Kansas. 

In consideration of the payment of the debt named therein, I release the 
mortgage made by to me, which is recorded in Book of 

Mortgages, page of the Records of County, Kansas. 

Witness my hand and seal, this day of 18 

{Signature) {Seal) 

State of , 

County. 

On this day of A.D. 18 before me, a in 

and for said County, personally came to me personally known 

to be the identical person whose name is affixed to the above release as 




FORMS OF MORTGAGES, ETC. 


583 


maker, and acknowledged the execution of the same to be his voluntary act 
and deed. 


Witness my hand and seal the day and year last above written. 

{Signature) {Seal.) 

( 194 .) 

Release of a Trust Deed Mortgage at the Request of the 
Creditor, in use in Virginia and West'Virginia. 


This Deed, Made this day of in the year one 

thousand eight hundred and between {name, residence, and occu¬ 

pation of the party of the first part in the original trust deed) of the 
of the first part, and {name of the party of the second part in the original 
trust deed) of the of the second part, and {name of the party of the 

third part in the trust deed) of the of the third part. 


in order to secure the said the 

did, by deed bearing date on the 

18 recorded in the office of the Clerk of 


heirs and assigns, certain 


Whereas, The said 
payment of the sum of 
day of 

convey to the said 

estate described in the said deed as follows : (here describe the land or prem¬ 
ises 7 iiortgaged and now released, in the same way as in the trust deed) and 
the said sum of money having been fully paid to the said 

he the said ha requested that the estate conveyed by the said 

deed of trust to the said in the said property hereinbefore men¬ 
tioned and described, be now released to the said 

This deed, therefore, witnesseth, that for and in consideration of the prem¬ 
ises, as well as of the sum of five dollars, the said with the consent 

of the said signified by signing and sealing this deed, do 

release to the said all claim upon the said property. 


Witness the following signatures and seals. 
State of Virginia. 


{Signatures) {Seals) 


of To wit: 

I, for the aforesaid, in the State of Virginia, do 

certify that whose name signed to the within writing, 

bearing date on the day of 18 ha acknowledged 

the same before me in my aforesaid. 

Given under my hand this day of 18 

{Signature) {Seal) 

( 195 .) 


Satisfaction of Mortgage, in use in Minnesota. 

Know all Men by these Presents, That I {or we) {name, residence, and 
occupation of assignee or assignees) do acknowledge full payment and satis¬ 
faction of a certain indenture of mortgage executed by to 

dated the day of 18 , and recorded 


MORTGAGES OF LAND. 


584 


in the office of Register of Deeds for the County of State of 

Minnesota, on the day of 18 , in book of mort¬ 

gages, page . Said mortgage was given upon the following described 
real estate, situate in the County of and State of Minnesota, viz.: 

(describe the land or premises mortgaged and released .’ substantially in the 
same way as they are described in the mortgage). If the mortgage has been 
assigned , the assignee must insert the following clause in brackets. [Which 
said mortgage was on the day of A.D. 18 , duly assigned and 

transferred by the said {name of the mortgagee') to {the name of the assignee) by 
written assignment, which was on the day of A.D. 18 , duly 

recorded in said office of Register of Deeds for the said County of 
in book of mortgages, page (here enumerate in a similar way any subse¬ 
quent assignments of the mortgage so as to show that it is now in the hands 
of the releasor .] And do hereby authorize and require the Register of 
Deeds of the said County of to cancel and discharge the same of 

record in his office. 


Witness hand and seal , this 
In Presence of 

State of Minnesota, 1 

>■ ss. 


day of A.D. 18 . 

{Signatures) {Seals.) 


County of ) 

On this day of A.D. 18 , came before me 

to me personally known to be the identical person described in and who 
executed the within satisfaction deed acknowledged that executed 

the same freely and voluntarily for the uses and purposes therein expressed. 

Notary Public, Minnesota. 


( 196 .) 

Assignment of Mortgage, in use in Michigan. 

Know all Men by these Presents, that I {name, residence , and occu¬ 
pation of assignor) of the first part, for and in consideration of the sum of 
lawful money of the United States of America, to 
in hand paid by {na?ne, residence, and occupation of assignee) 
of the second part, at or before the ensealing or delivery of these presents, 
the receipt whereof is hereby acknowledged, have granted, bargained, sold, 
assigned, transferred, and set over, and by these presents do grant, bargain, 
sell, assign, transfer, and set over unto the said part of the second part, a 
certain indenture of mortgage, bearing date the day of 

one thousand eight hundred and made by and between {here 

describe carefully the mortgage assigned\ giving the names of the parties and 
the description of the premises mortgaged, as described in the mortgage). 
And recorded in the office of the Register of Deeds of the County of 
, and State of Michigan, in Liber of Mortgages, at page 
with all and singular the premises therein mentioned and described, together 
with the {note, bond, or debt ) or obligation therein also mentioned, and the 


FORMS OF MORTGAGES, ETC . 


585 


moneys now due, or to become due, and the interest that may hereafter 
grow due thereon. 


To Have and to Hold the same unto the part of the second part 
heirs and assigns forever, subject only to the proviso in the said indenture 
of mortgage mentioned. And do hereby authorize and appoint the said 
part of the second part, true and lawful attorney, irrevocable, in name, 
or otherwise but at proper costs and charges, to have, use, and take all 
lawful ways and means for the recovery of the sum or sums of money now due 
and owing, or hereafter to become due and owing, upon the said and 

mortgage ; and in case of payment, to give acquittance or other sufficient 
discharge, as fully as might or could do if these presents were not 

made ; and do hereby for heirs, executors, and administrators, 

covenant, promise, and agree to and with the said part of the second part, 
that there is due upon the said and mortgage 

the sum of and that have good right and lawful authority 

to grant, bargain, and sell the same in manner aforesaid. 

Sealed and delivered the day of 18 . 

In Presence of 

(Signatures .) (Seals.) 


State of Michigan, 
County of 


1 


ss. 


On this day of A.D. one thousand eight hundred 

and before me, a in and for said County, personally 

appeared to me known to be the same person described 

in and who executed the within instrument, and acknowledged the same to 
be free act and deed. 

(Signature) 


( 197 .) 


Deed of Mortgage in use in New York. 

This Indenture, Made the day of in the year 

one thousand eight hundred and between (name, residence, 

and occupation of the mortgagor ) of the first part, and (name, residence, and 
occupation of the mortgagee) of the second part. 

Whereas, the said (name of the mortgagor ) justly indebted to the said 
part of the second part, in the sum of lawful money of 

the United States, secured to be paid by certain bond or obliga¬ 

tion bearing even date with these presents, in the penal sum of 
lawful money as aforesaid, conditioned for the payment of the said first 
mentioned sum of lawful money as aforesaid, to the said 

part of the second part, executors, administrators, or assigns, 

on ^ day of which will be in the year one thousand 

eight hundred and and interest thereon to be computed from 

at and after the rate of per cent, per annum, to be 

p a id . And it is thereby expressly agreed, that should 


586 


MORTGAGES OF LAND. 


any default be made in the payment of the said interest, or of any part 
thereof, on any day whereon the same is made payable, as above expressed, 
or should any tax or assessment be hereafter imposed upon the premises 
hereinafter described and become due or payable, and should the said 
interest remain unpaid and in arrear for the space of {usually thirty ) days, 
or such tax or assessment remain unpaid and in arrear for {usually ninety 
days ) then and from thenceforth, that is to say, after the lapse of either one 
of said periods, as the case may be, the aforesaid principal sum, with all 
arrearage of interest thereon, shall, at the option of the said part of the 
second part, administrators or assigns, become and be due and 

payable immediately thereafter, although the period above limited for the 
payment thereof may not then have expired, anything thereinbefore con¬ 
tained to the contrary thereof in anywise notwithstanding. As by the said 
bond or obligation, and the condition thereof, reference being thereunto 
had, may more fully appear. 

Now this Indenture Witnesseth, That the said part of the first part, 
for the better securing the payment of the said sum of money mentioned in 
the condition of the said bond or obligation, with interest thereon, according 
to the true intent and meaning thereof, and also for and in consideration of 
the sum of one dollar to in hand paid by the said part of the 

second part, at or before the ensealing and delivery of these presents, the 
receipt whereof is hereby acknowledged, ha granted, bargained, sold, 
aliened, released, conveyed, and confirmed, and by these presents do 
grant, bargain, sell, aliene, release, convey, and confirm unto the said part 
of the second part, and to and assigns forever, all (here hisei't a 

description of the premises mortgaged,\ as directed in Form 107). 

Together with all and singular the tenements, hereditaments, and appur¬ 
tenances thereunto belonging, or in anywise appertaining, and the rever¬ 
sion and reversions, remainder and remainders, rents, issues, and profits 
thereof. And also, all the estate, right, title, interest property, 

possession, claim, and demand whatsoever, as well in law as in equity, of 
the said part of the first part, of, in, and to the same, and every part and 
parcel thereof, with the appurtenances : 

To Have and to Hold the above granted, bargained, and described 
premises, with the appurtenances unto the said part of the second part, 
heirs and assigns, to their own proper use, benefit, and behoof 

forever. 

Provided always, and these presents are upon this express condition, 
that if the said part of the first part, heirs, executors, or administra¬ 
tors, shall well and truly pay unto the said part of the second part, 
executors, administrators, or assigns, the said sum of money mentioned in 
the condition of the said bond or obligation and the interest thereon, at the 
time and in the manner mentioned in the said condition, according to the 
true intent and meaning thereof, that then these presents, and the estate 
hereby granted shall cease, determine, and be void. 


FORMS OF MORTGAGES, ETC. 


53 7 

And the said heirs, executors, and administrators, do 

covenant and agree to pay unto the said part of the second part, execu¬ 
tors, administrators, or assigns, the said sum of money and interest as 
mentioned above, and expressed in the condition of the said bond. And if 
default shall be made in the payment of the said sum of money above 
mentioned, or the interest that may grow due thereon, or of any part thereof, 
or of the taxes or assessments on the premises hereby granted, that then 
and from thenceforth it shall be lawful for the said part of the second part 
executors, administrators, and assigns, to enter into and upon ail and 
singular the premises hereby granted or intended so to be, and to sell and 
dispose of the same and all benefit and equity of redemption of the said 
part of the first part, heirs, executors, administrators, or assigns 

therein, at public auction, according to the act in such case made and pro¬ 
vided. And as the attorney of the said part of the first part, for that 
purpose by these presents duly authorized, constituted, and appointed, to 
make and deliver to the purchaser or purchasers thereof, a good and suffi¬ 
cient deed or deeds of conveyance in the law for the same, in fee-simple, 
and out of the money arising from such sale, to retain the principal and 
interest which shall then be due on the said bond or obligation, together with 
the costs and charges of advertisement and sale of the said premises, 
rendering the overplus of the purchase money (if any there shall be), unto 
the said of the first part, heirs, executors, administrators, 

or assigns ; which sale, so to be made, shall forever be a perpetual bar, both 
in law and equity, against the said part of the first part heirs and 
assigns, and all other persons claiming or to claim the premises, or any part 
thereof, by, from, or under them, or either of them. 

And the said do further covenant, grant, promise, and 

agree, that the said part of the first part, shall and will make, 

execute, acknowledge, and deliver in due form of law all such further or 
other deeds or assurances as may at any time hereafter be devised or 
required, for the more fully and effectually conveying the premises above 
described and hereby granted, or intended so to be, unto the said part of 
the second part executors, administrators, or assigns, for the purposes 
aforesaid, and unto all and every person or persons, corporation or corpora¬ 
tions, deriving any estate, right, title, or interest therein, under this indenture 
or the power of sale herein contained, and the above granted premises 
against the said part of the first part, and all persons claiming through 
them will warrant and defend. 

And it is expressly agreed by and between the parties to these presents, 
that the said part of the first part shall and will keep the buildings erected 
and to be erected upon the lands above conveyed, insured against loss and 
damage by fire, by insurers, and in an amount approved by the said part 
of the second part, and assign the policy and certificates thereof to the said 
part of the second part; and in default thereof, it shall be lawful for the 
said part of the second part to effect such insurance, and the premium and 


MORTGAGES OF LAND. 


588 


premiums paid for effecting the same shall be a lien on the said mortgaged 
premises, added to the amount of the said bond or obligation, and secured 
by these presents, and payable on demand with interest at the rate of 
per cent, per annum. 


In Witness Whereof, the said part of the first part ha hereunto set 
hand and seal the day and year first above written. 

And {name of wife of mortgagor, if married) signs and seals this deed 
in token of her relinquishment and release to the said mortgage of all her 
right and claim of dower in and to the premises hereby granted. 

Sealed and Delivered in the Presence of 

{Signatures) (Seals.) 


State of 

of 

County of 


ss. 


On the day of in the year one thousand eight hundred 

and before me personally came to be the individual 

described in, and who executed the foregoing instrument, and 
acknowledged that he executed the same. 


( 198 .) 

The Bond to be Secured by the Preceding Form of 
Mortgage. 

Know all Men by these Presents, That (name, residence, and occupa¬ 
tion of the mortgagor ) held and firmly bound unto (name, residence, and 
occupation of the mortgagee) in the sum of lawful money of the 

United States of America, to be paid to the said executors, 

administrators, or assigns: For which payment well and truly to be made, 
bind heirs, executors, and administrators firmly 

by these presents. Sealed with seal . Dated the day 

of one thousand eight hundred and 

The Condition of the above Obligation is such, That if the above 
bounden heirs, executors, or administrators, shall well and truly 

pay, or cause to be paid, unto the above-named executors, adminis¬ 
trators, or assigns, the just and full sum of the day of 

which will be in the year one thousand eight hundred and 
and the interest thereon, to be computed from at and after the rate 

of per cent, per annum, and to be paid then the above 

obligation to be void, otherwise to remain in full force and virtue. 

And it is Hereby Expressly Agreed, that should any default be made 
in the payment of the said interest, or any part thereof, on any day whereon 
the same is made payable, as above expressed, or should any tax or assess¬ 
ment be hereafter imposed upon the premises described in the mortgage 
accompanying this bond, and become due or payable, and should the said 
interest remain unpaid and in arrear for the space of days, or said 


FORMS OF MORTGAGES, ETC. 


589 

tax or assessment remain unpaid and in arrears for then and from 

thenceforth, that is to say, after the lapse or expiration of either one of the 
said periods, as the case may be, the aforesaid principal sum of with 

all arrearage of interest thereon, shall, at the option of the said or 
legal representatives, become and be due and payable immediately thereafter, 
although the period above limited for the payment thereof may not then 
have expired, anything hereinbefore contained to the contrary thereof in 
anywise notwithstanding. 

( Signatures.) {Seals.) 

Signed, Sealed\ and Delivered in the Presence of 


State of 

of 

County of 



On the day of in the year one thousand eight 

hundred and before me personally came to be the individual 

described in, and who executed the foregoing instrument, and acknowl¬ 
edged that he executed the same. 


( 199 .) 

Satisfaction of Mortgage, in use in New York. 

State of New York, 

County of 

I do hereby Certify, That a certain Indenture of Mortgage, bearing date 
the day of one thousand eight hundred and made and 

executed {name, residence, and occupation of mortgagor) on (give the day of 
the date of the mortgage) to {name, residence, and occupation of ?nortgagee) 
for the amount of and recorded in the office of County of 

in Lib. of Mortgages, page on the day of 

in the year one thousand eight hundred and # o’clock, in the 

is paid. 

And I do hereby consent that the same be discharged of Record. 

Dated the day of 18 

{Signature.) (Seal.) 

In presence of 

State of New York, 

County of 

On the day of in the year one thousand eight hund¬ 
red and before me personally came to be the individual 

described in, and who executed the foregoing instrument, and acknowledged 
that he executed the same. 




{Signatures). {Seals.) 


59 ° 


MORTGAGES OF LAND. 


( 200 .) 

Assignment of Mortgage—Short Form. 

Know all Men by these Presents, That I ( name, residence, and occupa¬ 
tion of the assignor ) the mortgagee named in a certain mortgage deed, 
given by (name, residence, and occupation of the mortgagor ) to said (name 
of assignor) to secure the payment of dollars TinT , dated the 

day of in the year of our Lord eighteen hundred and 

recorded in the registry of deeds for the County of 

lib. fol. in consideration of the sum of dollars to me 

paid by (name, residence, and occupation of buyer and assignee) the receipt 
whereof is hereby acknowledged, do hereby sell, assign, transfer, set over 
and convey unto said (natne of assignee) and his heirs and assigns, said 
mortgage deed,, the real estate thereby conveyed, and the promissory note, 
debt, and claim thereby secured, and the covenants therein contained. 

To Have and to Hold the same to him the said (name of assignee) 
and his heirs and assigns, to his and their use and behoof forever; sub¬ 
ject nevertheless to the conditions herein contained, and to redemption 
according to law. 

In Witness Whereof, I, the said have hereunto set my hand 

and seal this day of in the year of our Lord eighteen 

hundred and 

(. Signature '.) (Seal.) 

Executed and Delivered in Presence of 


ss. A.D. 18 

Then personally appeared the above-named and acknowledged 

the above instrument to be his free act and deed. Before me, 

(. Signature .) 


( 201 .) 


Assignment of Mortgage, with Power of Attorney. 


Know all Men by these Presents, That I, (name, residence, and occu¬ 
pation of assignor) party of the first part, in consideration of the sum of 
lawful money of the United States, to me in hand paid by (name, 
residence, and occupation of assignee) of the second part, at or before the 
ensealing and delivery of these presents, the receipt whereof is hereby 
acknowledged, have granted, bargained, sold, assigned, transferred, and set 
over, and by these presents do grant, bargain, sell, assign, transfer, and set 
over unto the said party of the second part, his executors, administrators, 
and assigns, a certain indenture of mortgage, bearing date the 
day of one thousand eight hundred and made by 

(here state the najne of the niortgagor, and briefly describe the mortgage deed, 
and state the volume and page where it is registered) to which reference may 
be made, together with all the right, title, interest, and estate of said party 
of the first part, in and to the premises described and conveyed in and by 
said indenture of mortgage. 


FORMS OF MORTGAGES , ETC. 


591 


Together with the bond (or note) therein described and the money due 
and to grow due thereon, with the interest accruing or accrued, to have and 
to hold the same, unto the said party of the second part, his executors, 
administrators, and assigns, for his and their use, subject only to the proviso 
in the said indenture of mortgage mentioned; and 1 do hereby make, con¬ 
stitute, and appoint the said party of the second part, my true and lawful 
attorney, irrevocably in my name or otherwise, but at his own proper costs 
and charges, to have, use, and take all lawful ways and means for the 
recovery of the said money and interest; and in case of payment to dis¬ 
charge the same as fully as I might or could do if these presents were not 
made. 

In "Witness Whereof, I have hereunto set my hand and seal the 
day of one thousand eight hundred and 

( Signature .) {Seal.) 

Signed ' Sealed\ and Delivered in the Presence of 

State of 

County, j 

On this day of eighteen hundred and 

personally appeared before me known to me to be the 

person who signed and sealed the foregoing assignment of mortgage, and 
acknowledged the execution of the same for the uses and purposes therein 
set forth. 

Given under my hand and seal at in said county aforesaid. 

{Signature.) {Seal.) 

( 202 .) 

Assignment of Mortgage by a Corporation. 

Know all Men by these Presents, That the {legal name of the corpo¬ 
ration assigning) existing as a corporate body, in and under the laws of the 
State of of the first part, for and in consideration of 

the sum of lawful money of the United States, to the 

said corporation paid by {name, residence , a?id occupation of assignee) of the 
second part, at or before the ensealing and delivery of these presents, the 
receipt whereof is hereby acknowledged, hath granted, bargained, sold, as¬ 
signed, transferred, and set over, and by these presents doth grant, bargain, 
sell, assign, transfer, and set over unto the said party of the second part, a 
certain indenture of mortgage, bearing date the day of 

one thousand eight hundred and made by 

(here state the name of the jnortgagor , and briefly describe the mortgage deed ) 
the same being duly registered in the office of the register of deeds for the 
County of and State of to which said indenture 

of mortgage reference may be had. 

Together with the bond or obligation therein described, and the moneys 


592 


MORTGAGES OF LAND. 


due, and to grow due thereon, with the interest: to have and to hold the 
same unto the said party of the second part, his heirs and assigns, for his 
and their own use, subject only to the proviso in the said indenture of mort¬ 
gage mentioned. And the said party of the first part doth hereby make, 
constitute, and appoint the said party of the second part its true and lawful 
attorney, irrevocable, in the name of the said party of the first part, or 
otherwise, but at the proper costs and charges of the said party of the second 
part, to have, use, and take all lawful ways and means for the recovery of 
the said money and interest, and in case of payment, to discharge the same 
as fully as the said party of the first part might or could do if these pres¬ 
ents were not made. 

In Witness Whereof, the said party of the first part hath caused its 
corporate seal to be affixed to these presents, and the same to be signed by 
its attorney and president (or other officer) the day of 

in the year one thousand eight hundred and 

(Signature.) (Seal of the Corporation) 
Signed\ Sealed, and Delivered in Presence of 


State of 

County. 

On the day of in the year one thousand eight 

hundred and , before me came with whom I 

am personally acquainted, and known to me to be the attorney and 
of the within named corporation, who, being by me duly examined, says, that 
the seal which is affixed to the within assignment is the corporate seal of the 
said corporation, and was so affixed by its authority, and acknowledged 
that he executed the same as its act and deed. 

(Signature.) 



( 203 .) 


Discharge of Mortgage—Short Form. 

This Debt, secured by the mortgage, dated and recorded 

with deeds, lib. fol. has been paid to me by (name 

of mortgagor) and in consideration thereof I do discharge the mortgage 
and release the mortgaged premises to said (name of mortgagor) and his 
heirs. 

Witness my hand and seal A.D. 18 

(Signature) (Seal) 

Executed and Delivered in Presence of 


ss. A.D. 18 . Then said acknowledged the 

foregoing instrument to be free act and deed. 

Before me, 


(Signature) 


FORMS OF MORTGAGES, ETC. 


593 


(204.) 

Release and Quitclaim of Mortgage, as used in the West¬ 
ern States. 


Know all Men by these Presents, That I ( name of mortgagee) of the 
County of and State of for and in con¬ 

sideration of one dollar, to me in hand paid, and for other good and valuable 
considerations, the receipt whereof is hereby confessed, do hereby grant, 
bargain, remise, convey, release, and quitclaim unto (name of assignee or 
releasee ) of the County of and State of 

all the right, title, interest, claim, or demand whatsoever I may have acquired 
in, through, or by a certain indenture or mortgage deed, bearing date the 
day of A.D. 18 , and recorded in 

the recorder’s office of County, in book 

of page to the premises therein described, 

and which said deed was made to secure a certain promissory note (or bond ) 
bearing even date with said deed, for the sum of 
dollars and cents. 

Witness my hand and seal this day of A.D. 18 


State of 
County of 


(Signature) (Seal) 

| ss. 


I, in and for said county, in the State aforesaid, 

do hereby certify that who is personally known to me as 

the same person whose name is subscribed to the foregoing deed, appeared 
before me this day, in person, and acknowledged that he signed, sealed, and 
delivered the said instrument of writing as his free and voluntary act, for the 
uses and purposes therein set forth. 

Given under my hand and seal this day of A.D. 18 

(Signature) (Seal) 


(205.) 


Discharge of Mortgage, as used in the Middle States. 

State of 

County. 

I, (name, residence, a7id occupation of mortgagee ) do hereby certify that 
a certain indenture (or deed) of mortgage, bearing date the day 

of one thousand eight hundred and made and 

executed by ( here state the name of the mortgagor, and describe the deed 
briefly) and recorded in the office of County of 

in lib. of Mortgages, page on the day of 

in the year one thousand eight hundred and o’clock in the 

is paid. And I do hereby consent that the same be discharged 

of record. 

Dated the day of 18 

(Signature) (Seal) 

In Presence of 

38 



594 


MORTGAGES OF LAND . 


State of 
County of 

On the day of in the year one thousand eight 

hundred and before me personally came 

who is known to me to be the individual described in, and who executed the 
foregoing instrument, and acknowledged that he executed the same as his free 
act and* deed. 

( Signature.) 



( 206 .) 

Discharge and Satisfaction of Mortgage by a Corporation. 


(the legal name of the corporation) a corporate bod}’’ existing 
within and under the laws of the State of 


Doth hereby Certify, That a certain mortgage, bearing date the 
day of in the year one thousand eight hundred and 

made and executed by {here state the name of the mortgagor, and describe 
the mortgage briefly) and recorded in the office of the register in and for the 
County of in lib. of Mortgages, 

page on the day of is paid. 

In Witness Whereof, The said corporation has caused its corporate 
seal to be hereunto affixed, this day of in the year 

one thousand eight hundred and 

{Signature of attorney.) {Seal of corporation .) 

Witnessed by 


State of 
County of 

On the day of in the year one thousand 

eight hundred and , before me personally came 

to me known, who, being by me duly sworn, did depose and say, that he 
resided in the city {or town) of that he is the 

attorney and president {or other officer) of the said corporation ; that he 
knew the corporate seal of the said corporation, and that the seal affixed to 
the foregoing instrument was such corporate seal; that it was affixed by 
him by order of the said corporation, and that he signed his name thereto by 
the like order. 

{Signature.) 



( 207 .) 


Release of a Part of the Mortgaged Premises, 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and between 

{name, residence, and occupation of the mortgagee and releasor) party of the 
first part, and {name, residence, and occupation of the mortgagor to whom 
the lease is given) party of the second part. 


FORMS OF MORTGAGES, ETC. 


595 

Whereas, The said party of the second part, by indenture of mortgage, 
bearing date the day of one thousand eight hundred 

and for the consideration therein mentioned, and to secure the 

payment of the money therein specified, did convey certafh lands and tene¬ 
ments, of which the lands hereinafter described are part, unto the said party 
of the first part. 

And Whereas, The said party of the first part, at the request of the said 
party of the second part, has agreed to give up and surrender the lands here¬ 
inafter described unto the said party of the second part, and to hold and 
retain the residue of the mortgaged lands as security for the money remain¬ 
ing due on the said mortgage : 

Now this Indenture Witnesseth, That the said party of the first part, 
in pursuance of the said agreement, and in consideration of to 

him duly paid at the time of the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, has granted, released, quit¬ 
claimed, and set over, and by these presents does grant, release, quitclaim, 
and set over, unto the said party of the second part, all that part of the said 
mortgaged land {here describe carefully and accurately all that fart of the 
mortgaged land which it is intended to release, distinguishing it fro?n that 
which is retained ). 

Together with the hereditaments and appurtenances thereto belonging; 
and all the right, title, and interest of the said party of the first part, of, in, 
and to the same, to the intent that the lands hereby conveyed may be dis¬ 
charged from the said mortgage, and that the rest of the lands in the said 
mortgage specified may remain to the said party of the first part as here¬ 
tofore. To have and to hold the lands and premises hereby released and 
conveyed, to the said party of the second part, and his heirs and assigns, to 
his and their only proper use, benefit, and behoof forever, free, clear, and 
discharged of and from all lien and claim, under and by virtue of the inden¬ 
ture of mortgage aforesaid. 

In Witness Whereof, The said party of the first part has hereunto set 
his hand and seal on the day of in the year 

(Signature.) (Seal.) 

Executed and Delivered i?t Presence of 

State of 
County of 

On the day of in the year one thousand eight 

hundred and before me personally came who is 

known to me to be the individual described in, and who executed the fore¬ 
going instrument, and acknowledged that he executed the same as his free 
act and deed. 



(Signature?) 


596 


MORTGAGES OF LAND . 


( 208 .) 

Deed Extending a Mortgage. 

This Indenture, Made this day of A.D. 18 

by and between (name, residence , and occupation of the mortgagee) the owner 
and holder of a certain promissory note (or bond) for the principal sum of 
dollars, given by (name of mortgagor) and secured by a mort¬ 
gage of certain real estate in in the County of and 

State of dated day A.D. 18 and 

recorded in Registry of Deeds for the County of lib. 

fol. party of the first part, and the said (name of mortgagor) party 

of the second part, 

Witnesseth, That the said parties, for themselves and their representa¬ 
tives, hereby mutually agree that the time for the payment of the principal 
of said note and mortgage debt shall be and the same is hereby extended for 
the term of years from the day of A.D. 

18 and that the same is to bear interest from said date at the rate of 
per cent, per annum, payable on the day of and the 

day of in every year, until said principal sum shall be 

fully paid. 

And the said party of the second part hereby covenants and agrees that 
he will not require the holders of said note and mortgage to receive 
payment of said mortgage debt during said extended term ; that he will 
punctually pay the interest now due, and to grow due thereon, at the times 
and at the rate aforesaid ; that he will keep the mortgaged premises in good 
repair, and insured against fire, and the taxes thereon duly paid, according 
to the provisions of said mortgage, and that at the expiration of said extended 
term he will pay the said mortgage debt, with all interest then due thereon. 

It is expressly understood and agreed that nothing herein contained shall 
be construed to impair the security of said party of the first part, or his 
executors, administrators, or assigns, under said mortgage, or to affect or 
impair the lien on the real estate therein described which he has by virtue 
of said mortgage, nor affect or impair any rights or powers which he may 
have under the said note and mortgage for the recovery of the mortgage 
debt, with interest, in case of non-fulfilment of this agreement, or of any of 
the provisions hereof, by said party of the second part. 

In Witness Whereof, The said parties have hereunto set their hands 
and seals the day and year first above written. 

(Signature of mortgagee) (Seat.) 

(Signature of mortgagor) (Seal.) 

Signed, Sealed, and Delivered in Presence of 

Commonwealth of ss. 18 . Personallyappeared 

the above-named and acknowledged the above instrument to be 

their free act and deed. 

Before me, 


(Signature) 


FORMS OF MORTGAGES , ETC. 5 gy 

( 209 .) 

Deed of Mortgage in use in the Province of Quebec. 

On this day, the of in tho year of our Lord 

one thousand eight hundred and before the undersigned, public 

notar duly commissioned and sworn in and for the Province of Quebec, in 
the Dominion of Canada, residing in the city of Montreal, in the said 
Province, personally came and appeared (insert the name , residence , and occu¬ 
pation of the mortgagor ), who acknowledged and confessed to be well and 
truly indebted unto (insert the name , residence , and occupation of the mort¬ 
gagee) hereto present and accepting, for heirs and assigns, in the 

sum of currency, for value which the said do 

hereby acknowledge to have had and received of and from the said 
to full and entire satisfaction at the passing of these presents, whereof 
quit. Which said sum of he the said do hereby 

promise to well and truly pay, or cause to be well and truly paid, unto the 
said heirs or assigns, in gold coin, at its present standard of value, 

and of the same weight and fineness and number of pieces as at the 
date of the passing of this obligation, in ’ before which time 

it will not be optional with or competent for the said mortgagor to pay the 
said sum or any portion thereof without the written consent of said mort¬ 
gagee or representatives, with interest thereon till paid, at the rate of 
per centum per annum, to be accounted from and for security of 

the due and faithful payment of the said sum of and interest 

at the times and in the manner herein above agreed upon, the 
said ha mortgaged and hypothecated, and by these presents do 

mortgage and hypothecate, specially to and in favor of the said heirs 

and assigns, the hereinafter described landed property, which he declare 
well and truly to belong to {insert him , her , or them , as the case may be; then 
insert the description of the premises conveyed in mortgage , substatitially as 
in Form 107). 

Provided always, and it is specially covenanted and agreed by and 
between the said parties hereto, and this clause and condition is not to be 
or be held or considered to be penal or comminatory, but is of the essence 
of the present loan and obligation, and without which the same would not 
have been made or executed, that should the said mortgagor make default in 
any of the said interest payments for days after such interest 

payment shall become due and payable as aforesaid, then the said principal 
sum shall at once become exigible by the said mortgagee, h heirs or 
assigns, and that without any judicial demand, notice, or other formality 
whatsoever. 

And the said mortgagor do hereby further bind and oblige 
immediately to insure and to keep constantly insured at own cost and 

expense against loss by fire, with such insurance company or companies as 
the said mortgagee or representatives may approve of, for a sum of 

money not less than the house and other buildings erected on 


MORTGAGES OF LAND. 


598 

the above described piece and parcel of land, and to transfer to the said 
mortgagee and representatives the policy or policies of such insurance and 
insurances, together with the sum of money thereby insured, the whole as 
long as any part or portion of the said amount in principal or interest may 
remain unpaid. Failing which, the said mortgagee heirs and assigns, shall 
have the right to do so, and the said mortgagor heirs and representatives, 
shall be bound to repay on demand to the said mortgagee heirs and assigns, 
all such sum and sums of money which he or they may have expended in so 
doing; and for security thereof the said premises are hereby further hypothe¬ 
cated to the extent of . The said mortgagor to pay all counsel 

and notarial fees in respect hereof, and for one copy of these presents for 
the said mortgagee and costs of registration; and when this obligation shall 
be paid, the said mortgagor shall bear the expense of drawing and register¬ 
ing a discharge. 

And, at the making and passing of these presents, personally came, 
appeared, and intervened Dame wife of the said 

and by her said husband duly and specially authorized for the effects and 
purposes hereof, as appears by his signature hereto, who, after having had 
and taken communication of the foregoing deed of obligation and mortgage, 
doth hereby, until payment and satisfaction of the present obligation and 
mortgage, renounce, as well in her own name and behalf as for and in the name 
of the child or children born or to be born of her marriage with the said 
in favor of the said to all dower and all right or title of dower 

which she, the said and her said child or children, might or of 

right ought to have or claim in, to, or upon the hereby mortgaged premises, 
of which she hereby divests herself and her said child or children, declaring 
the same and every part thereof hereby freed, cleared, and discharged of and 
from all her and her said child or children’s said rights of dower, and all 
other her matrimonial rights, whether legal, stipulated, or customary, until 
payment of the present obligation as aforesaid. 

And for the execution of these presents the said parties have elected their 
domicil at their present place of residence above mentioned, where, etc., 

Done and Passed, at the said City of Montreal, in the office of 
the said notar under the number thousand hundred and 

on the day, month, and year first above and before written, and signed 
by the said with and in the presence of said notar these pres¬ 

ents having been first duly read to the said parties. 

( 210 .) 

Deed of Mortgage, with Dower, in use in Ontario. 

This Indenture, Made (in duplicate) the day of in 

the year of our Lord one thousand eight hundred and in pur¬ 

suance of the Act respecting short forms of mortgages, between (name, resi¬ 
dence, and occupation of the mortgagor ) hereinafter called the mortgagor of 
the first part; (na?ne of the wife of mortgagor) his wife of the second part; 


FORMS OF MORTGAGES, ETC. 


599 

and (name, residence, and occupation of the mortgagee ) hereinafter called the 
mortgagee of the third part. 

Witnesseth, That in consideration of of lawful money of 

Canada, now paid by the said mortgagee to the said mortgagor (the receipt 
whereof is hereby acknowledged), the said mortgagor do grant and mort¬ 
gage unto the said mortgagee heirs and assigns forever, all and 

singular th certain parcel or tract of land and premises situate, lying, 
and being ( insert here the description of the premises mortgaged ’ substan¬ 
tially as in Form 107). The said party of the second part hereby bars her 
dower in the said lands. 

Provided, This mortgage to be void on payment of of 

lawful money of Canada, with interest at per cent, per annum, as 

follows : and taxes and performance of statute labor. 

The said mortgagor covenant with the said mortgagee that the 
mortgagor will pay the mortgage money and interest, and observe the 
above proviso. 

That the mortgagor ha a good title in fee-simple to the said lands; 
and that he ha the right to convey the said lands to the said mortgagee; 
and that on default the said mortgagee shall have quiet possession of the 
said lands, free from all incumbrances. 

And that the said mortgagor will execute such further assurances of the 
said lands as may be requisite. ( Title-deeds ). 

And that the said mortgagor ha done no act to encumber the said 
lands. 

And that the said mortgagor will insure the buildings on the said lands 
to the amount of not less than dollars currency. 

And the said mortgagor do release to the said mortgagee all claims 
upon the said lands, subject to the said proviso. 

Provided, That the said mortgagee , in default of payment for 
months, may, upon giving notice in writing, enter upon and 

lease or sell the said lands ; provided, that the mortgagee may distrain for 
arrears of interest; provided, that in default of the payment of the interest 
hereby secured, the principal hereby secured shall become payable ; pro¬ 
vided, that until default of payment the mortgagor shall have quiet pos¬ 
session of the said lands. 

In Witness Whereof, The said parties hereto have hereunto set their 
hands and seals. 

Signed, Sealed, a?id Delivered in the presence of 

Received on the day of the date of this Indenture, 

County of to wit: 

I, (name of witness') of the of in the County of 

make oath and say: 1. That I was personally present, and did see the within 
instrument and duplicate thereof duly signed, sealed, and executed by 
the part thereto. 2. That the said instrument and 


6oo 


MORTGAGES OF LAND. 


duplicate were executed at the 3 * That I 

know the said part 4. That I am a subscribing witness to 

the said instrument and duplicate. 

Sworn before me, at of in the County of 

this day of in the year of our Lord 18 

A Commissioner for taking affidavits in B. R., etc . 

( 211 .) 

Full Deed of Mortgage, for General Use. 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and between 

(name, residence, and occupation of the mortgagor) of the one part, herein¬ 
after called the mortgagor, and (name, residence, and occupation of the 
mortgagee ), hereinafter called the mortgagee, of the other part. 

Whereas, the said mortgagor seized of, or well entitled to, the inherit¬ 
ance in fee-simple, of and in the lands and premises hereinafter described 
and released ; and having occasion to borrow, and take up at interest, the 
sum of ha applied to and requested the said mortgagee 

to lend and advance the same, which he the said mortgagee 

ha agreed to do, on having the repayment thereof secured to 
by a mortgage of the said lands, tenements, and hereditaments, in manner 
hereinafter mentioned. 

Now this Indenture Witnesseth, That in pursuance of the said agree¬ 
ment, and in consideration of the sum of to the said mort¬ 

gagor in hand paid by the said mortgagee at or immediately before the 
sealing and delivery of these presents, the receipt whereof the said mort¬ 
gagor do hereby acknowledge, and of and from the same, and every part 
thereof, do acquit, release, and discharge the said mortgagee 
heirs, executors, administrators, and assigns, and every of them, forever, 
by these presents, he the said mortgagor ha granted, 

aliened, released, and confirmed, and by these presents do 
grant, aliene, release, and confirm (and the said doth hereby 

release all her right of dower) unto the said mortgagee heirs 

and assigns, all tract , piece , and parcel of land, hereditaments, 

and premises, situate, lying, and being (here describe carefully the premises ) 

Together with all houses, buildings, rights, members, and appurte¬ 
nances thereunto belonging, or in anywise appertaining ; and all the estate, 
right, title, claim, and demand of the said mortgagor in, to, or upon the said 
lands and hereditaments, or any part thereof. 

To Have and to Hold the said lands, tenements, hereditaments, and 
premises hereby released, or intended so to be, with their appurtenances, 
unto the said mortgagee heirs and assigns, to the only proper 

use of the said mortgagee heirs and assigns, forever. 

Subject, nevertheless, to the proviso for redemption hereinafter con- 


FORMS OF MORTGAGES, ETC. 


601 


tained; that is to say, provided that if the said mortgagor 
heirs, executors, or administrators, shall pay unto the said mortgagee 
executors, administrators, or assigns, the full sum of 
of lawful money of (Prince Edward Island), 
without any abatement whatever, then these presents shall cease, and be 
void to all intents and purposes whatever. And the said mortgagor 
heirs, executors, and administrators, covenant with the said 
mortgagee executors and administrators, that he the said 

mortgagor heirs, executors, or administrators, shall and will 

pay, or cause to be paid, unto the said mortgagee executors, ad¬ 

ministrators, or assigns, the said principal sum of 

and interest, at the times and in the manner hereinbefore appointed for pay¬ 
ment thereof, without any deduction or abatement whatever, according to 
the true intent and meaning of these presents. And also shall and will, dur¬ 
ing so long as the said sum of or any part thereof, shall 

remain due on the security of these presents, pay or cause to be paid to the 
said mortgagee executors, administrators, or assigns, interest for 

the said sum of or for so much thereof as for the 

time being shall remain unpaid, after the rate of centum per 

annum, on the day of in every year. And 

also that he the said mortgagor now in good right 

to grant, release, and convey the hereditaments hereby released, unto the 
said mortgagee heirs and assigns, in manner aforesaid, accord¬ 

ing to the true intent and meaning of these presents. And further, that 
it shall and may be lawful to and for the said mortgagee heirs 

and assigns, after default shall be made in payment of the said sum of 
and interest, or any part thereof respectively, contrary 
to the proviso hereinbefore contained, peaceably to enter upon the said her¬ 
editaments, and to hold and enjoy the same, without any interruption, claim, 
or demand whatsoever. And moreover, that he the said mortgagor 
and heirs, and all persons whatsoever, having any estate or inter¬ 

est in the premises, shall and will at all times hereafter, during the con¬ 
tinuance of the said sum of and interest, or any part 

thereof, on this security, upon every reasonable request of the said mortgagee 
executors, administrators, and assigns, but at the costs 
and charges of the said mortgagor heirs, executors, and 

administrators, make and execute and perfect all such further conveyances 
and assurances in the law whatsoever, for the further and better conveying 
and assuring the said hereditaments hereby released, unto and to the use of 
the said mortgagee heirs and assigns ; subject to the said 

proviso, according to the true intent and meaning of these presents, as by the 
said mortgagee heirs and assigns, or his or their counsel 

in the law, shall be reasonably desired or advised and required, and tendered 
to be made and executed. 

And it is hereby further Provided, agreed, and declared, by and 


602 


MORTGAGES OF LAND. 


between the said parties to these presents, that if default shall be made in 
payment of the said sum of or the interest thereof, or any 

part thereof respectively, at the times hereinbefore appointed for payment 
of the same respectively, then and in any of such cases, and when and so 
often as any such default shall be made, the whole amount of the said prin¬ 
cipal money shall, notwithstanding any provision or condition of this mort¬ 
gage to the contrary, immediately fall due and become payable, and it shall 
be lawful for the said mortgage executors, administrators, or 

assigns, at anytime or times after such default shall have been so made, with¬ 
out any further consent on the part of the said mortgagor heirs 

and assigns (without prejudice, however, to the right of the said mortgagee 
heirs and assigns, to foreclose the equity of redemption, 
or to maintain any action under the covenants hereinbefore contained), to 
make sale and dispose of the said messuages, land, and other hereditaments 
and premises hereinbefore granted and released, or expressed or intended 
so to be, or any part or parts thereof, either together or in parcels, and either 
by public auction or private contract, with full power upon any such sale or 
sales to make any stipulations as to title or otherwise, which he or he 
shall deem necessary; and also with full power to buy in the said heredita¬ 
ments and premises, or any part or parts thereof, at any sale or sales by pub¬ 
lic auction, or to rescind any contract or contracts for the s*le of the same 
hereditaments and premises, or any part or parts thereof, and to re-sell the 
same hereditaments and premises which shall have been so bought in, or as 
to which any contract or contracts for sale shall have been rescinded as 
aforesaid, without being responsible for any loss which may be occasioned 
thereby. And, for the purposes aforesaid, or any of them, it shall be lawful 
for the said mortgagee executors, administrators, or assigns, 

to make and execute, or cause to be made and executed, all such agreements, 
deeds, conveyances, and assurances as he or executors, 

administrators, or assigns shall think fit. And it is hereby also agreed and 
declared, that upon any sale or sales which shall be made under the power 
of sale hereinbefore contained by the executors or administrators of the said 
mortgagee or by any other person or persons who may not be seized of the 
legal estate in the hereditaments and premises to be sold, the heirs of the 
said mortgagee or any other person or persons in whom the legal estate of 
the same hereditaments and premises, or any part thereof, shall be vested, 
shall make such conveyances and assurances of the same, for the purpose of 
carrying the sale thereof into effect, as the person or persons by whom the 
same shall be made shall direct. 

Provided also, and it is hereby agreed and declared, that the said mort¬ 
gagee executors, administrators, or assigns, shall not execute the 

power of sale hereinbefore contained (if the sale or sales thereunder be by 
public auction) unless and until he or they shall have first given 
week’s notice of such sale, by publishing such notice at least once in every 
week for successive weeks, in some newspaper published in 


FORMS OF MORTGAGES, ETC. 


603 

Provided also, and it is hereby further agreed and declared, that upon any 
sale purporting to be made in pursuance of the aforesaid power in that 
behalf, the purchaser or purchasers thereof shall not be bound to see or 
inquire whether either of the cases mentioned in the clause ©r provision lastly 
hereinbefore contained has happened, or whether any money remains due on 
the security of these presents, or otherwise, as to the propriety or regularity 
of such sale ; and notwithstanding any impropriety or irregularity whatso¬ 
ever in any such sale, the same shall, as far as regards the safety and pro¬ 
tection of the purchaser or purchasers thereat, be deemed and taken to be 
within the aforesaid power in that behalf, and to be valid and effectual accord¬ 
ingly, and the remedy of the said mortgagor heirs or assigns, 

in respect of any breach of the clause or provision lastly hereinbefore con¬ 
tained, shall be in damages only. And it is hereby also agreed and declared, 
that, upon any such sale as aforesaid, the receipt or receipts in writing 
of the said mortgagee executors, administrators, or assigns, for 

the purchase-money of the hereditaments and premises to be sold, shall be 
an effectual discharge or effectual discharges to the purchaser or purchasers 
for the money therein respectively expressed to be received, and that such 
purchaser or purchasers, after payment of or purchase- 

money, shall not be concerned to see tQ the application of such money, 
or be answerable for any loss, misapplication, or non-application thereof. 
And it is hereby further agreed and declared that the said mortgagee 
executors, administrators, and assigns, shall hold all and singu¬ 
lar the moneys which shall arise from any sale which shall be made in 
pursuance of the aforesaid power in that behalf, upon the trusts following ; 
that is to say, upon trust in the first place by, with, and out of the same 
moneys, to reimburse himself or themselves, and to pay or discharge all the 
costs and expenses attending such sale or sales, or otherwise to be incurred 
in or about the exercise of the said power of sale or in anywise relating 
thereto ; and, in the next place, upon trust to apply such moneys in or 
towards satisfaction of all and singular the moneys which for the time being 
shall be due on the security of these presents, and then upon trust to pay the 
surplus [if any] of the said moneys unto the said mortgagor h heirs or assigns, 
for h and their proper use and benefit. And it is hereby also agreed and 
declared that the aforesaid power of sale shall and may be exercised by any 
person or persons who for the time being shall be entitled to receive and give 
a discharge for the moneys which for the time being shall be due on the 
security of these presents. 

Provided Always, and it is hereby agreed and declared, that the said 
mortgagee, h executors, administrators, or assigns, shall not be answer- 
able nor accountable for any involuntary losses which may happen in or about 
the exercise or execution of the aforesaid power or trusts, or any of them* 

In Witness Whereof, the parties above mentioned have hereunto sub¬ 
scribed their names and affixed their seals to two copies thereof, interchange- 


604 


LEASES. 


ably, at on the day of in the 

year of our Lord 

(Name of mortgagor .) (Seal.) 

(Name of mortgagee.) (Seal.) 

Executed and interchanged in presence of 
(Names of witnesses?) 

$ 

Received, on the day of the date of the within written Indenture, from 
the within named mortgagee, the sum of being the consid¬ 

eration expressed in the same Indenture, to be paid by him to the within 
named mortgagor. 

Witness , 

This Deed was acknowledged before me by therein 

named apart from her husband, to have been voluntarily executed by her, 
and that she was aware of the nature of the contents thereof. 

Dated this day of A.D. 18 

J. P.for County. 


CHAPTER XXXI. 

LEASES. 

A lease is a contract whereby one party (the tenant) takes 
the possession of the land and all that is on it, and the other 
party (the landlord) gives possession of the land, and reserves 
(that is, agrees to take) a rent, which the tenant pays him by 
way of compensation. 

All things usually comprehended under the words “house,” 
“farm,” “land,” “store,” &c., pass to the tenant, where such 
words are used, unless there be an express exception. And 
inaccuracies as to qualities, names, measurements, or amounts, 
will be corrected, if there be enough in the lease to make the 
purposes and intentions of the parties certain. And letting to 
hire anything to be used carries with it all those appurtenances 
and accompaniments necessary for the proper use and enjoyment 
of the thing which belong to the letter. 

A landlord is bound to put his lessee into possession with 
good title. If he covenants “to renew” generally, this means 
a renewal of the lease on the same terms, but without inserting 
in the new lease another covenant of renewal. 



LEASES. 


605 

A landlord is under no legal obligation to repair the house, 
unless he expressly agrees to do so. If the house is never so 
much dilapidated and disfigured as to paper, paint, etc., and 
locks and blinds and doors and windows are out of order, and 
the like, the tenant can claim nothing of the landlord. Even 
if it becomes wholly uninhabitable by no fault of the house or 
of the landlord, as if it burns up, or is blown down, or if the 
overflow of a stream ruins a field or a farm, still the landlord is 
not bound to do anything, unless by special agreement. 

But if the house is uninhabitable by its own fault, as if it 
has a noisome and unwholesome stench, or, according to one 
case, if it be overrun with rats, or so decayed as to be open to 
the weather, it would seem to be the law of this country that 
the tenant may leave the house; always provided, however, that 
the objection or defect be not one which the tenant knew or 
anticipated, or would have known or expected if he had made 
reasonable inquiry and investigation before he took his lease. 
And perhaps no tenant can leave his house, or refuse or abate 
his rent, for any objection or difficulty arising after he hires the 
house. But, strange to say, the important question what the 
tenant’s rights are in such a case is still uncertain. 

If the house be wholly destroyed, the tenant must still pay 
rent, under an ordinary lease; because the law looks upon the 
land as the principal thing, and the house as secondary. And 
not only so, but if the tenant covenants “to return and rede¬ 
liver the house at the end of the term, in good order and 
condition, reasonable wear and tear only excepted,” he would 
be bound under this agreement to rebuild the house if it were 
burned down. But recently all well-drawn leases have clauses 
providing that the rent shall cease or be abated while the 
premises are uninhabitable from fire or any other unavoidable 
calamity. A similar exception is added to the clause about 
returning the house at the end of the lease. If this exception 
be in, a tenant is not bound to rebuild, even if the house be 
burned through the carelessness of himself or his servants. 

A tenant of a room, or of a suite of chambers, is entitled to 
the use of all the appurtenances and accommodations which 
fairly go with it, as of the front door and entry, water-closets, 


6o6 


LEASES. 


and of all windows, etc., proper to the enjoyment of what he 
hires. But an express agreement about all these things, and 
cellar-room, pump, and the like, is always safest. 

The tenant is not bound to make general repairs without an 
express agreement. But he must make such as are necessary 
to preserve the house from injury, as from rain, if shingles or 
slates are blown off or glass broken. And he would be bound 
even for ornamental repairs, as paper and paint, under a cove¬ 
nant to return “in good order.” 

The tenant of a farm is bound, without express covenants, 
to manage and cultivate the same in such a manner as good 
husbandry and the usual course of management of such farms 
in his vicinity would require. 

The times for payment of rent are usually specified in the 
lease, if not, they would be governed by the usage of the 
country, if there were any of sufficient distinctness and force. 

A tenant under a lease which says nothing about underlet¬ 
ting has a perfect right to underlet, remaining himself bound 
for his rent to his landlord. 

A tenant is not responsible for taxes, unless it is expressly 
agreed in the lease that he shall be. 

If there be a clause prohibiting him from underletting or 
assigning, and he agrees not to, nevertheless he may do so 
without forfeiting the land; but he will be, as before, liable for 
rent; and besides this, he will be responsible in an action for 
•any damages which the landlord can show that he has sustained 
by such underletting. 

It is usual to go further in the lease than this, and provide 
that such underletting shall make a forfeiture of the lease, and 
authorize the landlord to enter upon the premises and turn the 
tenant out. Where there is this covenant, if the tenant now 
underlets, the landlord cannot avail himself of the clause of 
forfeiture and afterwards hold the tenant for his rent. He may 
either hold him for his rent, and also for damages, or he may 
terminate the lease; but cannot do both. That is, if he con¬ 
tinues to hold the tenant responsible for rent, he cannot prevent 
the tenant’s letting somebody else occupy the house and pay to 
him (the tenant) the rent which he pays over. 


LEASES. 


607 

A tenant of a farm, if his lease is terminated by any event 
which was uncertain, and which he could neither foresee nor 
control, is entitled to the annual crop which he sowed while his 
interest in and right to the farm continued. 

If a lease be for a certain time, the tenant loses all right or 
interest in the land or premises when that time comes, and he 
must leave, or the landlord may turn him out at once. But he 
is a tenant at Will, if he holds over after a lease with consent, 
or occupies the land or house or store without a lease but with 
consent and an oral bargain; and a tenant at will cannot leave, 
nor can he be turned out, without a notice to quit. The law 
on this subject is not uniform. In general, however, it is this. 
If rent is payable quarterly, or not more frequently, then there 
must be a quarter’s notice. If rent is payable oftener, then the 
notice must be as long as the period of payment. Thus, if 
rent is payable monthly, there must be a month’s notice; if 
weekly, a week’s notice. But the notice must terminate on a 
day when the rent is payable. It may be given at any time, 
but operates only after the required interval or period between 
two payments. Thus, if a tenant whose lease terminates on the 
31st of December holds over by consent, and pays rent quarterly, 
and the landlord wishes that he should leave the house on the 
last day of September, he may give notice on the preceding 
30th day of June, or any day preceding that. But if he gives 
notice on any day before the 30th of June, the tenant will still 
have a right to stay until the 30th of September. Properly, the 
notice should specify the day, and the right day, when the 
tenant must leave; and should be in writing. 

Where the rent is in arrear, the notice to quit may be more 
brief; the statutes of the different States vary on this point, 
but a frequent period is fourteen days. And if notice to quit is 
given because the rent is unpaid, it may be given at any time 
and will operate at the end of the period which the law desig 
nates; but it should specify the day on which the tenant must 
quit. 

A tenant may give notice of his intention to quit, and 
generally it will be subject to the same rules already stated in 
reference to the notice given by a landlord. A tenant should 


6o8 


LEASES. 


give his notice to the party to whom he is bound to oay rent, or 
to an authorized agent of that party. 

FIXTURES. 

It is quite important that both tenant and landlord should 
have some knowledge of the law of fixtures; for this tells them 
what things the tenant may take away and what he cannot. 
For there are many things which a tenant may add, and after¬ 
wards remove, and many which he cannot remove. The method 
of affixing them may be a useful criterion, as it indicates the 
purpose of removal or otherwise. If with screws, or in such 
a way as to show that removal was intended, things may be 
taken away, when, if the same things were fastened more per¬ 
manently, they could not be. In modern times the rule in 
favor of the tenant seems to extend as far as this: whatever he 
has added, and can remove, leaving the premises entirely 
restored and in as good order as if he had not removed it, that 
he may take away. Among the things held to be removable, 
in different adjudged cases, are these: ornamental chimney- 
pieces; coffee-mills; cornices screwed on; furnaces; fire-frames; 
stoves; iron backs to chimneys; looking-glasses; pumps; gates; 
rails and posts; barns or stables on blocks. 

Among those held not removable are these: barns fixed in 
the ground; benches fastened to the house; trees, plants, and 
hedges, not belonging to a gardener by trade ; conservatory 
strongly affixed ; glass windows ; locks and keys. 

But almost every one of these might be removable, or not, 
according to the intent of the parties, and the rule above stated, 
of removableness with or without injury. 

If a man sells a house, the law of fixtures is construed far 
more severely against him than against a tenant who leaves a 
house; that is, the seller must permit the buyer to hold a great 
many things which an outgoing tenant might remove. Of 
course, a seller may take what he will from his house before he 
sells it, or make what bargain the parties choose to make about 
the fixtures. But if he makes no such bargain, and sells the 
house, he cannot then take from the house what a tenant who 
put them there might take. 


LEASES. 


609 

In favor of trade and manufactures, the law permits almost 
anything which was put in by a tenant for such purposes to be 
taken away, if the premises can be restored substantially to 
their original condition. 

In most of the States leases for a term of more than one 
year must be in writing, otherwise they take effect only as ten¬ 
ancies at will, even as between the parties thereto. 

In the following named States and Territories, such leases 
must be executed, acknowledged, and recorded in the same 
manner as deeds, otherwise they are invalid as against third 
parties without notice, viz.: Arizona, Arkansas, California, 
Colorado, Connecticut, Dakota, Delaware, Idaho, Iowa, Kansas, 
Kentucky, Mississippi, Missouri, Montana, Nebraska, Nevada, 
Oregon, Rhode Island, South Carolina, Texas, Wisconsin. 

In Florida, leases for more than two years must be recorded. 

In Indiana, Minnesota, New York, and Tennessee, leases 
for more than three years must be recorded. 

In Kentucky, Virginia, and West Virginia, leases for more 
than five years must be recorded. 

In Maine, Maryland, Massachusetts, and New Hampshire, 
leases for more than seven years must be recorded. 

In New Jersey, leases for more than three years must be in 
writing. 

In Pennsylvania, leases for more than three years must be 
in writing, and for more than twenty-one years must be recorded. 

In New Mexico, Utah, Vermont, Washington Territory, and 
Wyoming, leases must be executed and recorded in the same 
manner as deeds. 

In Dakota, leases of agricultural land are limited to ten 
years, those of city lots to twenty years. 


The remarks in respect to the variety of forms which will be 
found at the close of the chapter on deeds of land, are equally 
39 



6io 


LEASES. 


applicable to forms of leases, and should be read in connection 
with the following forms. 

( 212 .) 

A Short form of a Lease. 

This Indenture, Made the day of in the year of our 

Lord one thousand eight hundred and 

Witnesseth, That I, ( name and residence of the lessor) do hereby lease, 
demise, and let unto ( name and residence of the lessee ) a certain parcel of 
land, in the city (or town) of County of and State of 

with all the buildings thereon standing, and the appurtenances 
to the same belonging, bounded and described as follows (or, a certain house 
in said city, giving the street and number, with the land under and adjoming 
the samei) 

(The premises need not be described quite so minutely or fully as is proper 
in a deed or mortgage of land, but must be so described as to identify the?n 
perfectly, and make it certain just what premises are leased.) 

To Hold for the term of from the day of 

yielding and paying therefor the rent of 

And said lessee does promise to pay the said rent in four quarterly 
payments on the day of (or state otherwise just 

when the payments of rent are to be made) and to quit and deliver up the 
premises to the lessor or his attorney, peaceably and quietly at the end of 
the term, in as good order and condition, reasonable use and wearing thereof, 
fire and other unavoidable casualties excepted, as the same now are or may 
be put into by the said lessor, and to pay the rent as above stated, and all 
taxes and duties levied or to be levied thereon during the term, and also the 
rent and taxes as above stated, for such further time as the lessee may hold 
the same, and not make or suffer any waste thereof ; nor lease, nor underlet, 
nor permit any other person or persons to occupy or improve the same, or 
make or suffer to be made any alteration therein but with the approbation of 
the lessor thereto in writing, having been first obtained; and that the lessor 
may enter to view, and make improvements, and to expel the lessee, if he 
shall fail to pay the rent and taxes as aforesaid, or make or suffer any strip 
or waste thereof. 

In Witness Whereof, The said parties have hereunto interchangeably 
set their hands and seals the day and year first above written. 

(Signatures.) (Seals.) 

Signed, Sealed ’ and Delivered in Presence of 

( 213 .) 

A fuller Form, with a Provision for Abatement of Rent. 

This Indenture, Made this day of in the year 

of our Lord one thousand eight hundred and by and between 

(name and residence of lessor) and (name and residence of lessee) 


FORMS OF LEASES. 


611 

"Witnesseth., That the said {name of lessor) does hereby lease, demise, 
and let unto the said {name of lessee ) {describe the premises as directed in 
Form 211). 

To Hold for the Term of commencing the 

day of A.D. one thousand eight hundred and 

the said lessee or those claiming under him, yielding and paying rent therefor 
the sum of for each and every year, and after the same rate for 

any part of a year. 

And the said lessee, for himself, his heirs, executors, and administrators, 
does hereby covenant to and with the said lessor, and his heirs and assigns, 
that he or they will pay the said rent of in equal sums of 

the first of which payments shall be made on the day of 

A D. one thousand eight hundred and and that he or they will pay 

rent after the same rate for such further time as he the said lessee, or those 
claiming under him, may hold the premises; that he or they will from time 
to time, upon request by the lessor, or his heirs or assigns, pay to them such 
sum or sums of money as shall be equal to the amount of the taxes and 
duties, and water-taxes, that shall be levied or assessed on the demised 
premises for each year and part of a year during the term aforesaid, and 
during such further time as the said lessee and those claiming under him 
may hold the premises; that he or they will not suffer nor commit any strip 
or waste in the premises ; that he or they will not assign this lease, nor 
underlet the whole or any part of the premises, to any person or persons ; 
and that no alterations or additions shall be made during the term aforesaid, 
in or to the same, without the consent of the said lessor, or of those having 
his estate in the premises, being first obtained in writing, allowing thereof; 
and also that it shall be lawful for the said lessor, and those having his 
estate in the premises, at seasonable times to enter into and upon the same 
to examine the condition thereof; and further, that he thg said lessee, and 
his representatives, shall and will, at the expiration of said term, peaceably 
yield up unto the said lessor, or those having his estate therein, all and 
singular the premises, and all future erections and additions to or upon the 
same, in as good order and condition, in all respects (reasonable wearing 
and use thereof, and damage by fire, and other unavoidable casualties 
excepted) as the same now are, or may be put into by the said lessor or those 
having his estate in the premises. 

Provided always, and these presents are upon this condition, that if 
the said rent shall be in arrear, or the said lessee or his representatives or 
assigns do or shall neglect or fail to perform and observe any or either of 
the above covenants hereinbefore contained, which on his or their part are 
to be performed, then and in either of said cases, the said lessor, or those 
having his estate in the said premises, lawfully may, immediately or at any 
time thereafter, and while such neglect or default continues, and without 
further notice or demand, enter into and upon the said premises, or any 
part thereof, in the name of the whole, and repossess the same as of his 


612 


LEASES. 


former estate, and expel the said lessee and those claiming under him, and 
remove his or their effects (forcibly if necessary) without being taken or 
deemed guilty of any manner of trespass, and without prejudice to any 
remedies which might otherwise be used for arrears of rent, or preceding 
breach of covenant. 

And provided also, that in case the premises, or any part thereof, shall, 
during said term, be destroyed or damaged by fire or other unavoidable 
casualty, so that the same shall be thereby rendered unfit for use and habi¬ 
tation, then, and in such case, the rent hereinbefore reserved, or a just and 
proportionate part thereof, according to the nature and extent of the injuries 
sustained, shall be suspended or abated until the said premises shall have 
been put in proper condition for use and habitation by the said lessor, or 
these presents shall thereby be determined and ended at the election of the 
said lessor or his legal representatives. 

In Testimony Whereof, The said parties have set their hands and 
seals on the day and year first above written, to this and to another instru 1 
ment of like tenor and date. 

( Signatures .) (Seals.) 

Signed\ Sealed\ and Delivered in Presence of 

( 214 .) 

A Short Form of Lease, in use in the "Western States. 

This Indenture, Made this day of 18 , 

between (name and residence of the lessor) party of the first part, and (name 
and residence of the lessee) party of the second part, witnesseth that the said 
party of the first part, in consideration of the covenants of the said party of 
the second part, hereinafter set forth, do by these presents lease to the 
said party of the second part the following-described property, to wit 
(describe the property as directed in Form 211). 

To Have and to Hold the same to the said party of the second part, 
from the day of 18 , to the day of 

18 . And the said party of the second part, in consideration 
of the leasing the premises as above set forth, covenants and agrees with 
the party of the first part to pay the said party of the first part, as rent for 
the same, the sum of dollars, payable as follows, to wit (here state 

the times and terms of payment, much as in Form 211). 

The said party of the second part further covenants with the said party 
of the first part, that at the expiration of the time mentioned in this lease, 
peaceable possession of the said premises shall be given to said party of the 
first part, in as good condition as they now are, the usual wear, inevitable 
accidents, and loss by fire excepted ; and that upon the non-payment of the 
whole or any portion of the said rent at the time when the same is above 
promised to be paid, the said party of the first part may, at his election, 
either distrain for said rent due, or declare this lease at an end, and recover 


FORMS OF LEASES. 


613 

possession as if the same was held by forcible detainer: the said party ol 
the second part hereby waiving any notice of such election, or any demand 
for the possession of said premises. 

The covenants herein shall extend to and be binding upon the heirs, 
executors, and administrators of the parties to this lease. 

Witness the hands and seals of the parties aforesaid. 

(Signature of lessor .) (Seal) 

(.Signature of lessee .) (Seal.) 

( 215 .) 

A Lease of City Property, in use in Chicago. 

This Indenture, Made this day of in the 

year of our Lord one thousand eight hundred and between (name 

of the lessor) of the city of in the County of and State of 

party of the first part, and (name and residence of the lessee) of 
the second part, 

Witnesseth, That the said party of the first part, for and in considera¬ 
tion of the covenants and agreements hereinafter mentioned, to be kept and 
performed by the said party of the second part, or his executors, adminis¬ 
trators, and assigns, has demised and leased to the said party of the second 
part all those premises situate, lying, and being in the city of Chicago, in the 
County of Cook, and State of Illinois, and known and described as follows, 
to wit ( here describe the premises as directed in Form 211). 

To Have and to Hold the said above-described premises, with the 
appurtenances, unto the said party of the second part, and his executors, 
administrators, and assigns, from the day of in the 

year of our Lord one thousand eight hundred and for and during, 

and until the day of in the year of our Lord one 

thousand eight hundred and the said party of the second part 

paying rent therefor, as hereinafter, stated. 

And the said party of the second part, in consideration of the leasing the 
premises aforesaid, by the said party of the first part, to the said party of 
the second part, does covenant and agree with the said party of the first 
part, and his heirs, executors, administrators, and assigns, to pay the said 
party of the first part, at the house (or office or store) of the said party of the 
first part, numbered in Street, Chicago, or at the house or office of 
his assigns, as rent for the said demised premises, the sum of (state the whole 
annual rent) payable as follows (here state the times and terms of the pay¬ 
ments of rent). 

And it is further agreed by the said party of the second part, in consid¬ 
eration of the leasing of the premises, that the said party of the second part 
shall and will pay, or cause to be paid, promptly, as soon as the same becomes 
due, all assessments for water-rents that may be levied upon said demised 
premises, during the continuance of this lease, by the Board of Water Com¬ 
missioners of the city of Chicago, and save the said premises and the said 


LEASES. 


614 

party of the first part harmless therefrom, and that he will keep said 
premises in a clean and healthful condition, in accordance with the ordinances 
of the city and the direction of the Sewerage Commissioners. 

And the said party of the second part hereby covenants and agrees, in 
case of delay in payment of any water-rent levied upon said premises during 
said term, to pay said party of the first part, as liquidated damages for such 
breach of covenant, double the sum of such rent so assessed upon said prem¬ 
ises as aforesaid. 

And the said party of the second part further covenants with the said 
party of the first part, that at the expiration of the time in this lease men¬ 
tioned, he will yield up the said demised premises to the said party of the 
first part, in as good condition as when the same were entered upon by the 
said party of the second part, loss by fire or inevitable accident, and ordinary 
wear excepted. 

It is further agreed by the said party of the second part, that neither 
he nor his legal representatives will underlet said premises, or any part 
thereof, or assign this lease, without the written assent of said party of the 
first part, first had and obtained thereto. 

It is Expressly Understood and Agreed, By and between the parties 
aforesaid, that if the rent above reserved, or any part thereof, shall be behind 
or unpaid on the day and at the place of payment whereon the same ought 
to be paid, as aforesaid, or if default shall be made in any of the covenants 
herein contained, to be kept by the said party of the second part, or his 
executors, administrators, and assigns, it shall and may be lawful for the 
said party of the first part, or his heirs, executors, administrators, agent, 
attorney, or assigns, at his or their election, to declare said term ended, and 
the said demised premises, or any part thereof, either with or without process 
of law, to re-enter, and the said party of the second part, or any other person 
or persons occupying, in or upon the same, to expel, remove, and put out, 
using such force as may be necessary in so doing, and the said premises 
again to repossess and enjoy as in his or their first and former estate ; and 
it shall be the duty of the said party of the second part, his executors, admin¬ 
istrators, or assigns, to be and appear at the said place above specified for 
the payment of said rent, and then and there tender and pay the same as the 
same shall fall due from time to time, as above, to the said party of the first 
part, or his agent or assigns; or in his or their absence, if the party of the 
second part, or his legal representatives, shall offer to pay the same then and 
there, such offer shall prevent such forfeiture. 

And it is expressly understood that it shall not be necessary in any event 
for the party of the first part, or his assigns, to go on or near the said demised 
premises to demand said rent, or elsewhere than at the place aforesaid. And 
in the event of any rent being due and unpaid, whether before or after such for¬ 
feiture declared, to distrain for any rent that may be due thereon, upon any 
property belonging to the said party of the second part, whether the same 
be exempt from execution or distress by law or not, and the said party of 


FORMS OF LEASES. 


615 

the second part, in that case, hereby waives all legal rights which he may 
have to hold or retain any such property, under any exemption laws now in 
force in this State, or in any other way. Meaning and intending hereby to 
give to the said party of the first part, and his heirs, executors, administrators, 
and assigns, a valid and first lien upon any and all the goods, chattels, or 
other property belonging to the said party of the second part, as security for 
the payment of said rent, in manner aforesaid, anything hereinbefore con¬ 
tained to the contrary notwithstanding. And if at any time said term shall 
be ended at such election of said party of the first part, or his heirs, execu¬ 
tors, administrators, or assigns, as aforesaid, or in any other way, the said 
party of the second part, for himself and his executors, administrators, and 
assigns, does hereby covenant, promise, and agree to surrender and deliver 
up said above-described premises and property, peaceably to the said party 
of the first part, or his heirs, executors, administrators, and assigns, imme¬ 
diately upon the determination of said term as aforesaid; and, if he shall 
remain in the possession of the same days after notice of such 

default, or after the termination of this lease, in any of the ways above 
named, he shall be deemed guilty of a forcible detainer of said demised 
premises under the statute, and shall be subject to all the conditions and 
provisions above named, and to eviction and removal, forcibly or otherwise, 
with or without process of law, as above stated; and in order to enforce a 
forfeiture of this lease for non-payment of rent when due, no demand for 
rent when due shall be required, any demand being hereby expressly 
waived. 

And it is further covenanted and agreed by and between the parties, that 
the party of the second part shall pay and discharge all costs and attorney’s 
fees and expenses that shall arise from enforcing the covenants of this inden* 
ture by the party of the first part. 

In Testimony Whereof, The said parties have hereunto set their hands 
and seals the day and year first above written. 

{Signature of lessor.) (Seal.) 

{Signature of lessee .) {Seal.) 

In Presence of 

( 216 .) 

A Lease with Provisions for Taxes and Assessments. 

This Indenture, Made the day of in the 

year one thousand eight hundred and between {name and residence 

of lessor) of the first part, and {name and residence of lessee) of the second 
part, witnesseth, that the said party of the first part, for and in consideration 
of the rents, covenants, and agreements hereinafter mentioned, reserved, and 
contained, on the part and behalf of the said party of the second part, his 
executors, administrators, and assigns, to be paid, kept, and performed, has 
granted, demised, and to farm letten, and by these presents does grant, 
demise, and to farm let, unto the said party of the second part, and his 
executors, administrators, and assigns, all {describe the premises as directed 
in For?n 21 1). 


6i6 


LEASES. 


To Have and to Hold the said above mentioned and described premises, 
with the appurtenances, unto the said party of the second part, his executors, 
administrators, and assigns, from the day of one 

thousand eight hundred and for and during and until the full 

end and term of thence next ensuing; and fully to be complete 

and ended, yielding and paying therefor unto the said party of the first part, 
his heirs or assigns, yearly, and every year during the said term hereby 
granted, the yearly rent or sum of lawful money of the United 

States of America, in equal quarter-yearly payments, to wit: on the first day 
of (name the months ) in each and every of the said years : Provided 
always, nevertheless, that if the yearly rent above reserved, or any part 
thereof, shall be behind or unpaid on any day of payment whereon the same 
ought to be paid as aforesaid; or if default shall be made in any of the 
covenants herein contained, on the part and behalf of the said party of the 
second part, his executors, administrators, and assigns, to be paid, kept, and 
performed, then and from thenceforth it shall and may be lawful for the said 
party of the first part, his heirs or assigns, into and upon the said demised 
premises, and every part thereof, wholly to re-enter and remove all persons 
therefrom, and the same to have again, repossess, and enjoy, as in his or 
their first and former estate, anything hereinbefore contained to the contrary 
thereof in anywise notwithstanding. And the said party of the second 
part, for himself and his heirs, executors, and administrators, does cove¬ 
nant and agree, to and with the said party of the first part, his heirs and 
assigns, by these presents, that the said party of the second part, his executors, 
administrators, or assigns, shall and will yearly, and every year during the 
said term hereby granted, well and truly pay, or cause to be paid, unto the 
said party of the first part, his heirs or assigns, the said yearly rent above 
reserved, on the days and in manner limited and prescribed as aforesaid, for 
the payment thereof, without any deduction, fraud, or delay, according to the 
true intent and meaning of these presents. And that the said party of the sec¬ 
ond part, his executors, administrators, or assigns, shall and will, at their own 
proper costs and charges, bear, pay, and discharge all such taxes, duties, 
and assessments whatsoever, as shall or may, during the said term hereby 
granted, be charged, assessed, or imposed upon the said demised premises. 

And that on the last day of the said term, or other sooner determination 
of the estate hereby granted, the said party of the second part, his executors, 
administrators, or assigns, shall and will peaceably and quietly leave, sur¬ 
render, and yield up unto the said party of the first part, his heirs or assigns, 
all and singular the said demised premises. 

And the said party of the first part, for himself and his heirs, executors, 
and administrators, does covenant and agree to and with the said party of 
the second part, his executors, administrators, and assigns, by these pres¬ 
ents, that the said party of the second part, his executors, administrators, or 
assigns, paying the said yearly rent above reserved, and performing the 
covenants and agreements aforesaid on his and their part, the said party 


FORMS OF LEASES. 


617 

of the second part, his executors, administrators, and assigns, shall and may 
at all times during the said term hereby granted, peaceably and quietly have, 
hold, and enjoy the said demised premises, without any manner of let, suit, 
trouble, or hindrance of or from the said party of the first part, his heirs or 
assigns, or any other person or persons whomsoever. 

In Witness Whereof, The said parties have hereunto set their hands 
and seals, interchangeably, to two copies of this indenture. 

(Signature of lessor .) {Seal.) 

{Signature of lessee.) {Seal.) 

In Presence of 

( 217 .) 

A Lease, with Covenants about ‘Water-Rate, and Injury by 
Fire, in use in New York. 

This Agreement, Made between { 7 iame a 7 id residence of lessor) party 
of the first part, and {name and residence of lessee) party of the second part, 
witnesseth, that the said party of the first part has agreed to let, and hereby 
does let, and the said party of the second part has agreed to take, and 
hereby does take, the following-described premises {here describe the prem¬ 
ises , as in Form 211) for the term of to commence 

and to end to be occupied {describe 

the intended occupation) and not otherwise. And the said party of the sec¬ 
ond part hereby covenants and agrees to pay unto the said party of the first 
part the annual rent or sum of dollars, payable {state the 

times and terms of the payments). 

And shall also pay the Croton water-rate, and will keep the plumbing 
work, pipes, glass, and the premises generally in repair, and will surrender 
them at the expiration of the said term, in as good state and condition as 
reasonable use and wear thereof will permit. 

And the said party of the second part further covenants that he will not 
assign, let, or underlet the whole or any part of the said premises, nor make 
any alteration therein without the written consent of the said party of the first 
part, under the penalty of forfeiture and damages ; and that he will not occupy 
the said premises, nor permit the same to be occupied for any business 
deemed extra-hazardous without the like consent, under the like penalty. 
And the said party of the second part further covenants that he will permit 
the said party of the first part, or his agent, to show the premises to per¬ 
sons wishing to hire or purchase, and three months next preceding the 
expiration of the term will permit the usual notices of “ to let,” or “ for sale,” 
to be placed upon the windows, walls, or doors of said premises, and remain 
thereon without hindrance or molestation. 

And also, that if default be made in any of the covenants herein contained 
on the part of the party of the second part, or if the said premises or any 
part thereof shall become vacant during the said term, the said party of the 
first part may re-enter the same, either by force or otherwise, without being 
liable to any prosecution therefor; and re-let the said premises or any part 


6i8 


LEASES. 


thereof in one or more parcels, as the agent of the said party of the second 
part, and receive the rent thereof, applying the same, first to the payment of 
such expense as he may be put to in re-entering, and then to the payment 
of the rent due by these presents ; and the balance (if any) to be paid over 
to the said party of the second part; and, in case of deficiency, said party 
of the second part will pay the same. 

And the said party of the second part hereby further covenants that if 
any default be made in the payment of the said rent, or any part thereof, at the 
times above specified, or if default be made in the performance of any of the 
covenants or agreements herein contained, the said hiring, and the relation 
of landlord and tenant, at the option of the said party of the first part, shall 
wholly cease and determine ; and the said party of the first part shall and 
may re-enter the said premises, and remove all persons therefrom ; and the 
said party of the second part hereby expressly waive the service of any 
notice in writing of intention to re-enter, as provided for in the third section 
of an act entitled “ An Act to abolish Distress for Rent, and for other Pur¬ 
poses,” passed May 13, 1846. 

And it is further agreed between the parties to these presents, that, in 
case the building hereby leased shall be partially damaged by fire, the same 
shall be repaired as speedily as possible by the party of the first part; that, 
in case the damage shall be so extensive as to render the building untenant¬ 
able, the rent shall cease until the same be repaired; provided the damage 
be not caused by the carelessness or negligence of the party of the second 
part, or his agents or servants. 

If the building be so damaged that the owner shall decide to rebuild, the 
term shall cease, the premises be surrendered, and the accrued rent be paid 
up to the time of the fire. 

In consideration of the letting of the premises above mentioned to the 
above named {name of the lessee') and of the sum of one dollar to him paid 
by the said party of the first part, the said party of the second part does 
hereby covenant and agree to and with the party of the first part above named, 
and his legal representatives, that if default shall at any time be made by the 
said party of the second part, in the payment of the rent and performance of 
the covenants above contained on his part to be paid and performed, that he 
will well and truly pay the said rent or any arrears thereof, that may remain 
due unto the said party of the first part, and also all damages that may arise 
in consequence of the non-performance of said covenants, or either of them, 
without requiring notice of any such default from the said party of the first 
part. 

Witness our hands and seals this day of 

in the year of our Lord one thousand eight hundred and 

{Witness) 

{Signature of lessor) {Seal.) 

{Signature of lessee) {Seal) 


FORMS OF LEASES. 


619 


( 218 .) 

A Lease by Grant, in use in the Western States. 

This Indenture, Made and entered into on the > day 

of one thousand eight hundred and by and 

between (name of lessor) of (residence of lessor ) party of the first part, and 
(name of lessee) of (residence of lessee) party of the second part, witnesseth, 
that the said party of the first part, in consideration of the rents reserved, 
and the covenants hereinafter contained, does hereby grant, demise, and to 
farm let, unto the said party of the second part (describe the premises as in 
For?n 211). 

To Have and to Hold the Same, With all the rights, immunities, privi¬ 
leges and appurtenances thereto belonging, unto the said party of the second 
part, and his executors, administrators, and assigns, for and during the full 
end and term of commencing on the day of 

18 , and ending on the day of 

18 , under and subject to the stipulations hereinafter 

contained, the said party of the second part yielding and paying to the said 
party of the first part, for the said premises, the annual rent of 
payable in equal quarterly (or monthly) payments ; that is to say 
on the during said term ; which rent the said party of the 

second part, for himself and his executors, administrators, and assigns, cov¬ 
enants well and truly to pay, at the times aforesaid. 

And the said party of the second part covenants and agrees that if the 
rent aforesaid should at any time remain due and unpaid, the same shall bear 
interest at the rate of per cent, per annum, from the time it so 

becomes due, until paid. And the said party of the second part further cov¬ 
enants and agrees that it shall be lawful for the said party of the first part, 
and those having freehold estate in the premises, at reasonable times to 
enter into and upon the same, to examine the condition thereof ; and also 
that the said party of the second part, and his legal representatives, shall and 
will, at the expiration of this lease, whether by limitation or forfeiture, peace¬ 
ably yield up to the said party of the first part, or his legal representatives, 
the said premises, in the condition received, only excepting natural wear and 
decay, and the effects of fire ; and that the said party of the second part, for 
and during all the time that he, or any one else in his name, shall hold over the 
premises after the expiration of this lease, in either of said ways, shall and 
will pay to said party of the first part double the rent hereinbefore reserved. 
Also the said party of the second part further covenants and agrees that any 
failure to pay the rent hereinbefore reserved, when due, and within 
days after a demand for the same, shall produce an absolute forfeiture of this 
lease, if so determined by said party of the first part, or his legal represen¬ 
tatives. Also that this lease shall not be assigned, nor the said premises, or 
any part thereof, underlet, without the written consent of the said party of 
the first part, or his legal representatives, under penalty of forfeiture. And 
that all repairs of a temporary character, deemed necessary by said party of 


62 o 


LEASES. 


the second part, shall be made at his own expense, with the consent of the 
said party of the first part, or his legal representatives, and not otherwise. 

Provided Always, and these presents are on this express condition, 
that if the said party of the second part, or his legal representatives, shall fail 
to pay the rent hereinbefore reserved, for the space of days after the 

same shall have become due, or shall fail to perform any of the covenants 
hereinbefore entered into on his and their part, then the said party of the first 
part shall be at liberty to declare this lease forfeited, by serving a written 
notice to that effect on the said party of the second part, or his legal repre- 
sentatives, and to re-enter upon and take possession of the demised premi¬ 
ses, free from any claim of the lessee or any one claiming under him. And 
all estate herein granted shall, upon service of such notice, forthwith cease, 
and said lessor, his heirs, legal representatives, or assigns, shall be forthwith 
entitled to the possession of the demised premises without any further pro¬ 
ceeding at law or otherwise, to recover possession thereof. And the said 
party of the first part covenants and agrees with the said party of the second 
part, and his legal representatives, that, the covenants herein contained being 
faithfully performed by the said party of the second part, he shall peaceably 
hold and enjoy the said demised premises, during the term aforesaid, with¬ 
out hindrance or interruption by the said lessor or any other person. 

In Witness Whereof, The said parties have executed this indenture in 
duplicate, signing their names and affixing their seals to both parts thereof, 
the day and year in this behalf above written. 

(Signature of lessor) {Seal.) 

{Signature of lessee) {Seal) 

In Presence of 

( 219 .) 

A Lease by Certificate, with Surety. 

This is to Certify, That I have let and rented unto ( name of lesseiy 
{describe the premises, as in Form 2ii)for the term of from 

the day of 18 at the annual rent of 

dollars, payable {state time of payment). The premises 
above mentioned, or any part thereof, shall not be let or underlet without the 
written consent of the landlord, under penalty of forfeiture and damages ; 
nor shall the same be used or occupied for any business deemed hazardous on 
account of fire, without the like consent under the like penalty. 

Given under my hand and seal the day of 18 

{Signature) {Seal) 

{Witnesses) 

This is to Certify, That I have hired and taken from {name of lessor) 
{describe the premises in the same way as in the preceding part) for the term 
of from the day of 18 at 

the rent of dollars, payable 

And I hereby promise to make punctual payment of the rent in manner 


FORMS OF LEASES. 


621 


aforesaid, and to quit and surrender the premises, at tne expiration of said 
term, in as good slate and condition as reasonable use and wear thereof will 
permit, damages by the elements excepted, and engage not to let or underlet 
the whole cr any part of the said premises, without the written consent of 
the landlord, under the penalty of forfeiture and damages ; and also not to 
use or occupy the said premises for any business deemed extra hazardous, on 
account of fire, without the like consent, under the like penalty. 

Given under my hand and seal the day of 18 

(. Signature.) (Seal.) 

( Witnesses.) 

In Consideration of the letting of the premises above described, and 
for the sum of one dollar, I do hereby become surety for the punctual pay¬ 
ment of the rent, and performance of the covenants, in the above written 
agreement mentioned, to be paid and performed by (najne of lessee) and if 
any default shall be made therein, I do hereby promise and agree to pay unto 
(name of lessor) such sum or sums of money as will be sufficient to make 
up such deficiency, and fully satisfy the conditions of the said agreement 
without requiring any notice of non-payment, or proof of demand being 
made. 

Given under my hand and seal the day of 18 

(Signature) (Seal.) 

( Witnesses.) 

( 220 .) 

A Lease of City Property, in use in St. Louis. 

This Indenture, Made the day of in the year of 

wr Lord eighteen hundred and between (name and residence 

of the lessor) of the first part, and (name and residence of lessee) of the 
second part, witnesseth, That the said party of the first part, in considera¬ 
tion of the rents, covenants, and stipulations hereinafter mentioned, and 
hereby agreed to be paid, kept, and performed by the said party of the 
second part, his executors, administrators, and assigns, hath leased, and by 
these presents doth lease, to the said party of the second part the following- 
described premises ( here describe the house , as of brick , or stone , number of 
stories , and number in the block) in block No. in the city of St. Louis, 
to commence on the day of 18 for and 

during the term of at the annual rent of payable in four 

equal quarterly payments, beginning three months from the date hereof. 
Any failure to pay each payment of rent when due, to produce a forfeiture 
of this lease, if so determined by said lessor or his successors. The lease 
of said tenement or any part of it is not assignable, nor is said tenement or 
any part of it to be underlet, without the written consent of said lessor, under 
penalty of forfeiture. And it is hereby covenanted, that, at the expiration 
of this lease, the said tenement and premises are to be surrendered to said 
lessor, his heirs, assigns, or successors, in the condition received, only 
excepting its natural wear and decay, or the effects of accidental fire. All 


622 


LEASES. 


repairs deemed necessary by said lessee to be made at his expense. AH 
fixtures shall be bound for the rent. 

The said lessee and all holding under him hereby engaging to pay the 
rent above reserved, and double rent for every day when he or any one else 
in his name shall hold on to the whole or any part of said tenement, after 
the expiration of this lease, or of its forfeiture for non-payment of rent, etc. 
This tenement and premises to be kept free of any nuisance in or adjacent 
thereto, at the expense of the said lessee. 


{Witness.) 


{Signature of lessor?) {Seal.) 
{Signature of lessee?) {Seal?) 

( 221 .) 


What is called a Country Lease, in use in the Western 

States. 


This Indenture, Made this day of in the year of 

our Lord one thousand eight hundred and between ( na7ne of lessor) 

of the of in the County of and State of 

party of the first part, and ( name and residence of lessee) party of the second 
part, witnesseth, That the said party of the first part for and in consideration 
of the covenants and agreements hereinafter mentioned, to be kept and per¬ 
formed by the said party of the second part, his executors, administrators, 
and assigns, has demised and leased to the said party of the second part all 
those premises situate, lying and being in the township of County 

of State of known and described as follows, to wit 

{describe the premises in such way as to identify the?n perfectly by situation , 
metes , and bounds , or otherwise). 

To Have and to Hold the said above-described premises, with the appur¬ 
tenances, unto the said party of the second part, and his executors, 
administrators, and assigns, from the day of in the year 

of our Lord one thousand eight hundred and for and during, and 

until the day of in the year of our Lord one thousand 

eight hundred and paying rent therefor as hereinafter stated. 

And the said party of the second part, in consideration of the leasing of 
the premises aforesaid, by the said party of the first part, to the said party 
of the second part, does covenant and agree with the said party of the first 
part, and his heirs, executors, administrators, and assigns, to pay the said 
party of the first part, as rent for the said demised premises, the sum of 
dollars, annual rent, payable quarterly, in four equal quarterly 
payments, the first payment to be due and made in three months from the 
date of this lease, payable at the {here state the place where the rent should 
be paid). 

And the said party of the second part further covenants with the said 
party of the first part, that at the expiration of the time in this lease 
mentioned, he will yield -t> the said demised premises to the said party of 
the first part, in as good condition as when the same were entered upon by 


FORMS OF LEASES. 


623 

the said party of the second part, loss by fire or inevitable accident, and 
ordinary wear excepted. 

It is further agreed by the said party of the second part, that neither he 
nor his legal representative will underlet said premises, or any part thereof, 
or assign this lease, without the written assent of said party of the first part, 
first had and obtained thereto. 

It is Expressly Understood and Agreed by and between the parties 
aforesaid, that if the rent above reserved, or any part thereof, shall be behind 
or unpaid, on the day and at the place of payment, whereon the same ought 
to be paid, as aforesaid, or if default shall be made in any of the covenants 
herein contained, to be kept by the said party of the second part, his 
executors, administrators, and assigns, it shall and may be lawful for the 
said party of the first part, his heirs, executors, administrators, agent, 
attorney, or assigns, at his or their election, to declare said term ended, and 
the said demised premises, or any part thereof either with or without process 
of law, to re-enter, and the said party of the second part, or any other per¬ 
son or persons occupying, in or upon the same, to expel, remove, and put 
out, using such force as may be necessary in so doing, and the said premises 
again to repossess and enjoy, as in his or their first and former estate; and it 
shall be the duty of the said party of the second part, his executors, admin¬ 
istrators, or assigns, to be and appear at the said place above specified, for 
the payment of said rent, and then and there tender and pay the same as the 
same shall fall due from time to time, as above, to the said party of the first 
part, or his agent or assigns; or in his or their absence, if the said party of 
the second part shall offer to pay the same then and there, such offer shall 
prevent said forfeiture. 

And it is expressly understood that it shall not be necessary in any event 
for the party of the first part or his assigns, to go on or near the said 
demised premises to demand said rent, or elsewhere than at the place afore¬ 
said. And in the event of any rent being due and unpaid, whether before 
or after such forfeiture declared, to distrain for any rent that may be due 
thereon, upon any property belonging to the said party of the second part, 
whether the same be exempt from execution or distress by law or not, and 
the said party of the second part, in that case, hereby waives all legal rights 
which he now has or may have to hold or retain any such property, under 
any exemption laws now in force in this State, or in any other way. Mean¬ 
ing and intending hereby to give to the said party of the first part and his 
heirs, executors, administrators, and assigns, a valid and first lien upon any 
and all the goods, chattels, or other property belonging to the said party of 
the second part, as security for the payment of said rent in manner afore¬ 
said, anything hereinbefore contained to the contrary notwithstanding. And 
if at any time said term shall be ended at such election of said party of the 
first part, or his heirs, executors, administrators, or assigns, as aforesaid, or 
in any other way, the said party of the second part, for himself and his 
executors, administrators, and assigns, does hereby covenant, promise, and 


LEASES. 


624 

agree to surrender and deliver up said above-described premises and 
property, peaceably, to said party of the first part, or his heirs, executors, 
administrators, and assigns, immediately upon the determination of said 
term as aforesaid; and if he shall remain in the possession of the same 
days after notice of such default, or after the termination of this 
lease, in any of the ways above named, he shall be deemed guilty of a 
forcible detainer of said demised premises, and shall be subject to all the 
conditions and provisions above named, and to eviction and removal, forcibly 
or otherwise, with or without process of law, as above stated. 

And it is further covenanted and agreed by and between the parties, that 
the party of the second part shall pay and discharge all costs and attorney’s 
fees and expenses that shall arise from enforcing the covenants of this 
indenture by the party of the first part. 

In Testimony Whereof, The said parties have hereunto set their hands 
and seals the day and year first above written. 

(Signature of lessor .) (Seal.) 

(Signature of lessee.) (Seal) 

I?i Presence of 

( 222 .) 

A G-round Lease. 

This Indenture, Made this day of in the year of 

our Lord one thousand eight hundred and between (iiame a?id 

residence of lessor) party of the first part, and (name and residence of lessee) 
party of the second part, witnesseth, That the said party of the first part for 
and in consideration of the covenants and agreements hereinafter mentioned, 
to be kept and performed by the party of the second part, hath demised and 
leased to the party of the second part, all those premises situate in the 

of in the County of and State of 

known and described as follows, to wit ( here give such 
description of the premises as shall identify them , and distinguish them fro?n 
any other). 

To Have and to Hold The above described premises, with the appur¬ 
tenances, unto the party of the second part, from the day 

of in the year of our Lord one thousand eight hundred and 

for and during, and until the . And the party of the second 

part, in consideration of the leasing of the premises aforesaid, does covenant 
and agree with the party of the first part to pay to the party of the first part 
as rent for said demised premises, at the office of in 

the sum of (state the su?n to be paid as annual rent) in four equal quarterly 
payments, each of them the sum of dollars, to be paid on the 

first (or other) day of the month of (the four months in which the re?it is 
payable) in each year (or describe otherwise the ter7ns and twies of the pay¬ 
ments as they may have been agreed upon) ; and also that the said party of 
the second part will pay, or cause to be paid, all water-rates, and all taxes, 


FORMS OF LEASES. 


625 

and assessments that may be laid, charged or assessed on said demised 
premises pending the existence of this lease ; or if at any time after any tax, 
assessment, or water-rate shall have become due or payable, the party of the 
second part, or his legal representatives, shall neglect to pay such water- 
rates, tax, or assessment, it may be lawful for the party of the first part to 
pay the same at any time thereafter, and the amount of any and all such 
payments so made by the party of the first part shall be deemed and taken, 
and are hereby declared to be, so much additional and further rent, for 
the above demised premises, due from and payable by the party of the 
second part; and may be collected in the same manner, by distress or 
otherwise, as is hereinafter provided for the collection of other rents to grow 
due thereon. 

And it is expressly understood and agreed by the said party of the second 
part hereto, for himself and his heirs, executors, administrators, and assigns, 
that the whole amount of rent reserved, and agreed to be paid for said above 
demised premises, and each and every installment thereof, shall be and is 
hereby declared to be a valid and first lien upon any and all buildings and 
improvements on said premises, or that may at any time be erected, placed, 
or put on said premises by said party of the second part, or his heirs, exec¬ 
utors, and administrators, or assigns, and upon his or their interest in this 
lease, and the premises hereby demised ; and that whenever, and as often as 
any installment of rent or any other amount above declared to be deemed 
and taken as rent, shall become due and remain unpaid for one day after the 
same becomes due and payable, said party of the first part, his heirs, exec¬ 
utors, administrators, agent, attorney, or assigns, may sell at public auction 
to the highest bidder for cash, after having first given ten days’ notice of the 
time and place of such sale in some newspaper published in 
all the buildings and improvements on said premises, and all the right, title, 
and interest acquired by said party of the second part, under this lease, to 
the premises herein described, and as the attorney of the said party of the 
second part—hereby irrevocably constituted—may make to the purchaser or 
purchasers ^thereof, a suitable and proper transfer bill of sale or deed of the 
same—and out of the proceeds arising from such sale, after first paying all 
costs and expenses of such sale, including commissions and attorney’s fees 
3 —retain to himself the whole amount due on said lease up to the date of said 
sale, rendering the surplus (if any) to said party of the second part, his heirs, 
executors, administrators, agent, attorney, or assigns, which sale shall be a 
perpetual bar to and against all rights and equities of said party of the second 
part, his heirs and assigns in and to the property sold. 

And the party of the second part further covenants with the party of 
the first part, that, at the expiration of the time in this lease mentioned, 
he will yield up said demised premises to the party of the first part, in 
as good condition as when the same were entered upon by the party of 
the second part, loss by fire, or inevitable accident and ordinary wear 
excepted. 


40 


626 


LEASES. 


It is further agreed by the party of the second part, that neither he nor 
his legal representatives will underlet said premises, or any part thereof, or 
assign this lease, without the written assent of said party of the first part 
first had and obtained thereunto, nor use or suffer them to be used for any 
purpose calculated to injure the reputation of the premises, or of the neigh¬ 
borhood, or to impair the value of the surrounding neighborhood property 
for present use or otherwise. 

It is Expressly Understood and Agreed, By and between the par¬ 
ties aforesaid, that if the rent above reserved, or any part thereof, shall be 
behind or unpaid on the day of payment whereon the same ought to be paid, 
as aforesaid, or if default shall be made in any of the covenants herein con¬ 
tained to be kept by the party of the second part, executors, administrators, 
or assigns, it shall and may be lawful for the party of the first part, or his 
heirs, executors, administrators, agent, attorney, or assigns, at his or their 
election, to declare said term ended, and into the said demised premises, or 
any part thereof, either with or without process of law, to re enter, and the 
party of the second part or any other person or persons occupying, in or 
upon the same, to expel, remove, and put out, using such force as may 
be necessary in so doing, and the said premises again to repossess 
and enjoy, as of his or their first and former estate; and to distrain 
for any rent that may be due thereon, upon any property belonging to 
the party of the second part, whether the same be exempt from execu¬ 
tion and distress by law or not; and the party of the second part, in 
that case, hereby waives all legal rights which he now has or may 
have, to hold or retain any such property under any exemption laws now 
in force in this State, or in any other way; meaning and intending 
hereby to give the party of the first part, his heirs, executors, administrators, 
agent, attorney, or assigns, a valid and first lien upon any and all the goods, 
chattels, or other property belonging to the party of the.second part, as se¬ 
curity for the payment of said rent, in manner aforesaid, anything hereinbe¬ 
fore contained to the contrary notwithstanding. And if at any time said 
term shall be ended at such election of said party of the first part, or his 
heirs, executors, administrators, agent, attorney, or assigns, as aforesaid, or 
in any other way, the party of the second part does hereby covenant and 
agree to surrender and deliver up said above described premises and prop¬ 
erty peaceably to the party of the first part, or his heirs, executors, admin¬ 
istrators, agent, attorney, or assigns, immediately upon the determination of 
said term as aforesaid ; and if the said party of the second part, or his legal 
representatives, shall remain in possession of the same one day after notice 
of such default, or after the termination of this lease, in any of the ways 
above named, he or they shall be deemed guilty of a forcible detainer of the 
premises, and shall be subject to all the conditions and provisions above 
named, and to eviction and removal, forcibly or otherwise, with or without 
process of law, as above stated. 

And it is further understood and agreed by the said party of the 


FORMS OF LEASES. 


627 

second part, that neither the right given in this lease, to said party of 
the first part, to collect the rent that may be due under the terms of this 
lease by sale, or any proceedings under the same, shall in any way affect the 
right of said party of the first part to declare this lease void, and the term 
hereby created ended, as above provided upon default made by said party 
of the second part. 

And the said party of the first part hereby waives his right to any notice 
from said party of the second part, of his election to declare this lease at an 
end, under any of its provisions, or any demand for the payment of rent, 
or the possession of premises leased herein ; but the simple fact of the non¬ 
payment of the rent reserved shall constitute a forcible entry and detainer as 
aforesaid. 

And said party of the second part further agrees not to remove any 
buildings or other improvements from said premises, without written con¬ 
sent of said party of the first part, and that the said second party shall 
pay and discharge all costs and attorney’s fees and expenses that shall 
arise from enforcing the covenants of this indenture, by the party of the first 
part. 

It is further understood and agreed , That all the conditions and cov¬ 
enants contained in this lease shall be binding upon the heirs, executors, 
administrators, and assigns of the parties to these presents respectively. 

In Testimony Whereof, The said parties have hereunto set their hands 
and seals, the day and year first above written. 

{Signature of the lessor.) {Seal.) 

{Signature of the lessee.) (Seal.) 

Signed ’ Sealed\ and Delivered in Presence of 


( 223 .) 

An Assignment of Lease, and Ground-Rent. 

This Indenture, made the day of in the year 

of our Lord one thousand eight hundred and between {name and 

residence of the assignor) party of the first part, and {name and residence of 
the assignee) party of the second part, witnesseth, That the said party of the 
first part, for and in consideration of the sum of dollars, lawful 

money of the United States of America, unto him in hand well and truly 
paid by the said party of the second part, at the time of the execution 
hereof, the receipt whereof is hereby acknowledged, by these presents does 
grant, bargain, sell, assign, release, and confirm unto the said party of the 
second part a certain indenture, made and executed on the day of 

in the year of our Lord eighteen hundred and whereby 

the said party of the first part leased to one {name of the lessee in the lease 
here assigned) certain premises therein described as follows {here copy the 
description of the premises in that lease) reserving a certain rent, payable to 
said party of the first part; that is to say {here slate the rent reserved in that 


628 


LEASES. 


lease) payable (here state the times and terms of payment) together with the 
said rent to the said party of the first part, payable as aforesaid. 

Together with all right and power of entry and distress and of re-entry, 
and all other the covenants, ways, means, and remedies for the recovery 
thereof, and all and singular the rights, incidents, and appurtenances whatso¬ 
ever, thereunto belonging, and the reversions and remainders thereof, and 
all the estate, right, title, interest, property, claim, and demand whatso¬ 
ever, of him the said party of the first part, or his legal representatives, 
either in law or equity, as well of, in, and to the said yearly rent or sum 
hereby granted and assigned, as al o of, in, and to the said lot or piece of 
ground, with the appurtenances, for and out of which the same rent is 
issuing and payable. To have and to hold, receive and take, all and singular 
the hereditaments and premises hereby granted and assigned, with the 
rights, remedies, incidents, and appurtenances, unto the said party of the 
second part, his heirs and assigns, to and for the only proper use and behoof 
of him the said party of the second part, his heirs and assigns forever. 
And the said party of the first part, and his heirs, all and singular the heredi¬ 
taments and premises hereby granted and assigned, with the rights, remedies, 
incidents, and appurtenances, unto the said party of the second part, and 
his heirs and assigns, against him the said party of the first part and his 
heirs, and against all and every other person and persons whomsoever, 
lawfully claiming or to claim, by, from, or under him or them, or any of them, 
shall and will warrant and forever defend by these presents. 

In Witness Whereof, The said parties to these presents have hereunto 
interchangeably set their hands and seals the day and year hereinbefore first 
written. 

(Signature of the assignor.) (Seal.) 

(Signature of the assignee.) (Seal.) 

Sealed and Delivered in the Presence of us, 

( Witnesses.) 

Received the day of the date of the above indenture of the above- 
named the sum of being the full consideration money 

above mentioned. 

(Signature of the assignor .) 

( Witness.) 

On the day of Anno Domini, 18 , before me, 

personally appeared the above-named (na?ne of the assignor) 
and in due form of law acknowledged the above indenture to be his free act 
and deed, and desired the same might be recorded as such. 

Witness my hand and seal the day and year aforesaid. 

(Signature) (Seal.) 


FORMS OF LEASES. 


629 


( 224 .) 

A Leas© containing Chattel Mortgage Covenants, to 
secure the Rent. 

This Indenture, Made this day of in the year of 

our Lord one thousand eight hundred and between {name and 

residence of lessor) of the first part, and {name and residence of lessee) of 
the second part, witnesseth, That the said party of the first part, for and in 
consideration of the covenants and agreements hereinafter mentioned, to be 
kept and performed by the said party of the second part, his executors, 
administrators, and assigns, has demised and leased to the said party of the 
second part all those premises situate, lying, and being in the city of 
in the County of and in the State of known and described 

as follows, to wit {here describe the premises as in Form 211). 

To Have and to Hold The said above-described premises, with the 
appurtenances, unto the said party of the second part, his executors, admin¬ 
istrators, and assigns, from the day of in the year of 

our Lord one thousand eight hundred and for and during and 

until the day of in the year of our Lord one thousand 

eight hundred and . And the said party of the second part, 

in consideration of the leasing of the premises aforesaid, by the said party 
of the first part to the said party of the second part, does covenant and 
agree with the said party of the first part, his heirs, executors, administra¬ 
tors, and assigns, to pay the said party of the first part, as rent for said 
demised premises, the sum of dollars, in four equal quarterly pay¬ 
ments of dollars each {$ ), payable {here state the days when 

the refit should be paid) at the house {or office, or counting-room , or store) of 
said party of the first part, in said city of 

And it is further agreed by the said party of the second part, in con¬ 
sideration of the leasing of the premises aforesaid, that the said party of 
the second part shall and will pay, or cause to be paid promptly, as soon as 
the same becomes due, all assessments for water-rents that may be levied 
upon said demised premises during the continuance of this lease, and save 
said premises and the party of the first part harmless from all charges and 
expenses connected with the supply of water to said premises. And the 
said party of the second part hereby covenants and agrees^ in case of 
default in the payment of any water-rent levied upon said premises during 
said term, to pay unto said party of the first part, as liquidated damages for 
such breach of covenant, double the sum of such rent so assessed upon 
said premises as aforesaid. 

And the said party of the second part further covenants with the said 
party of the first part, that he will keep said premises in a clean and healthy 
condition, in accordance with the ordinances of the city, and directions of 
the proper authorities. 

It is further agreed by the said party of the second part, that neither he 
nor his legal representatives will underlet said premises or any part thereof, 


63 o 


LEASES. 


or assign this lease, without the written assent of the said party of the first 
part first had and obtained thereto. 

This Indenture Further Witnesseth, That the said party of the second 
part, for and in consideration of the sum of {insert the whole su?n to be paid 
wider the lease ) dollars, in hand paid, the receipt whereof is hereby acknowl¬ 
edged, does hereby grant, sell, convey, and confirm unto the said party of 
the first part, his heirs and assigns, all and singular the following-described 
goods and chattels, to wit {here give a schedule or list of the articles , describ¬ 
ing them sufficiently). 

Together with all and singular the appurtenances thereunto belonging 
or in anywise appertaining: to have and to hold the same unto the said 
party of the first part, his heirs, executors, administrators, and assigns, to 
his and their sole use forever. And the said party of the second part, for 
himself and for his heirs, executors, and administrators, does covenant and 
agree with the said party of the first part and his heirs, executors, adminis¬ 
trators, and assigns, that he is lawfully possessed of the said goods and 
chattels as of his own property; that the same are free from all incum¬ 
brances, and that he will, and his heirs, executors, and administrators shall, 
warrant, and defend the same unto the said party of the first part, and his 
heirs, executors, administrators, and assigns, against the lawful claims and 
demands of all persons. 

Provided, Nevertheless, That if the said party of the second part or 
his heirs, executors, administrators, or assigns, shall well and truly pay, or 
cause to be paid, unto the said party of the first part or his heirs, executors, 
administrators, or assigns, the said sum of dollars, rent, above 

reserved, punctually, and in the manner and at the times and place above 
mentioned, then and from thenceforth these presents,and everything herein 
contained, shall cease, and be null and void. 

And Provided Also, That it shall be lawful for the said party of the 
second part, his heirs, executors, and adminis:rators, to retain possession of 
the said granted goods and chattels, and at his own expense to keep and to 
use and enjoy the same, until the said party of the second part, or his heirs, 
executors, administrators, or assigns, shall make default in the payment of 
said rent above specified, at the time or times, and in the manner herein¬ 
before contained, or unless the said party of the first part shall fear diminu¬ 
tion, removal, or waste for want of proper care, or if the said party of the 
second part shall sell or assign, or attempt to sell or assign said goods 
and chattels, or any part thereof, or if any writ issued from any court shall 
be levied on any part of the above-described goods and chattels—that then, 
and in any of the aforesaid cases, all of said sum of dollars, 

above reserved as rent for said demised premises, shall become due and 
payable, and the said party of the first part, his heirs, executors, adminis¬ 
trators, and assigns, agents Ot attorneys, or any of them, may elect to take 
possession of the said property, and for that purpose may pursue the same 
or any part thereof, wherever it may be found, and also may enter any of the 


FORMS OF LEASES. 


631 

premises of the said party of the second part, with or without force or 
process of ’.aw, wherever the said goods and chattels may be or be supposed 
to be, and search for the same, and, if found, to take possession of and 
remove, and sell and dispose of said property, or so much thereof as may 
be necessary to pay the rent due, and the balance of rent for the whole 
unexpired term, whether due or not due, at public auction, to the highest 
bidder, after giving ten days’ notice of the time, place, and terms of sale, 
together with a description of the property to be sold, either by publication 
in some newspaper in the city of or by similar notices posted up 

in three public places in the vicinity of such sale, or at private sale, with or 
without notice, for cash or on credit, as the said party of the first part, or 
his heirs, executors, administrators, or assigns, agents or attorneys, or any 
of them, may elect, and out of the money arising from such sale, to retain, 
first, all costs and charges for pursuing, searching, taking, removing, keep¬ 
ing, storing, advertising, and selling of such property, goods, chattels, and 
effects, and all prior liens, together with the rent due, and the balance of 
rent for the whole unexpired term, whether due or not due, rendering the 
overplus of the money arising from such sale, and the remainder of said 
goods and chattels, if any there shall be, unto the said party of the second 
part, or his legal representatives. 

It is Expressly Understood and Agreed, by and between the parties 
aforesaid, that if the rent above covenanted to be paid, or any part thereof, 
shall be behind or unpaid on the day of payment whereon the same ought to 
be paid, as aforesaid, or if default shall be made in any of the covenants 
herein contained, to be kept by the said party of the second part, his execu¬ 
tors, administrators, and assigns, it shall and may be lawful for the said party 
of the first part, his heirs, executors, administrators, agent, attorney, or 
assigns, at his or their election, to declare said term ended, and into the said 
demised premises, or any part thereof, either with or without process of law, 
to re-enter, and that said party of the second part, or any other person or 
persons occupying, in or upon the same, to expel, remove, and put out, using 
such force as may be necessary in so doing, and the said premises again to 
repossess and enjoy, as in his or their first and former estate, and to dis¬ 
train for any rent that may be due thereon, upon any property belonging to 
the said party of the second part, whether the same be exempt from execu¬ 
tion or distress by law or not, and the said party of the second part, in that 
case, hereby agrees to waive all legal right which he may have to hold or 
retain any such property, under any exemption-law now in force in this 
State, or in any other way. And if at any time said term shall be ended at 
such election of said party of the first part, or his heirs, executors, adminis¬ 
trators, or assigns, as aforesaid, or in any other way, the said party of the 
second part, or his executors, administrators, or assigns, does hereby cove¬ 
nant and agree to surrender and deliver up said above-described premises 
and property, peaceably, to said party of the first part, or his heirs, execu¬ 
tors, administrators, and assigns, immediately upon the determination of said 


LEASES. 


632 


term as aforesaid, and if he shall remain in possession of the same after such 
default, or after the termination of this lease in any of the ways above named, 
he shall be deemed guilty of a forcible detainer of said demised premises, and 
shall be subject to all the conditions and provisions above named, and to 
eviction and removal, forcibly or otherwise, with or without process of law, 
as above stated. 

In Testimony Whereof, The said parties have hereunto set their hands 
and seals the day and year first above written. 

(Signature of lessor .) (Seal.) 

(Signature of lessee.) (Seal.) 

In Presence of 


State of 
County of 



I, Justice of the Peace in and for said county, do hereby 

certify that this lease and mortgage was duly acknowledged before me by the 
above-named (name of lessee) this day of A.D. 18. 

(Seal.) 


( 225 .) 


A Building Lease. 

This Deed of Lease, Made and entered into, in duplicate, this 
day of A.D. 18 , between (name of lessor) of County 

of and State of party of the first part, and (name 

of lessee) of County of and State of 

party of the second part: 

Witnesseth, That the said party of the first part, in consideration of the 
covenants, agreements, and stipulations hereinafter mentioned, as well as the 
yearly rent of dollars, to be paid to him in four equal quarterly 

payments in each year (the first payment to be made on the 
day of A.D. 18 ), doth by these presents lease to the said party 

of the second part for the term of years, which said term begins on 

the day of 18 , the following-described lot of land, to 

wit (here describe the premises as i?i Form 211). 

The said party of the second part, for himself and his heirs, hereby cove¬ 
nants with said lessor and his heirs to pay said rent as aforesaid, and also 
to pay all city, county, and State taxes, and all other taxes and demands of 
every description, nature, or kind whatever, which may from time to time be 
legally required or demanded of said premises, whether general tax or special 
tax. 

Every failure, first, to pay the said rent, or any part thereof, when it is 
respectively made payable; or, second, to pay the said city, county, and 
State taxes, and all Other taxes and demands, or any part thereof (legally 
required or demanded of said premises, within the year the same shall 
become due, assessed to either said lessor, his heirs or representatives, or 


FORMS OF LEASES. 


633 

to said lessee or his representatives); or, third, to keep and perform any of 
the other covenants, agreements, or stipulations herein mentioned, shall 
make and create a forfeiture of this lease, and a termination of the term for 
which the above premises were let, and all the estate hereby conveyed shall 
be absolutely void, if so determined, at any day or time however distant, after 
such failure, by notice in writing to that effect, given by said lessor, his 
heirs or assigns, to said lessee or his assigns; which said notice may be 
served by posting a copy or duplicate of the same up at one of the most 
public places on said premises, or by delivering a copy or duplicate of such 
notice to said lessee or his assigns. 

This lease of said premises, or any part thereof, is not to be assigned, 
under penalty of forfeiture, without the written consent of said lessor, his 
heirs or assigns. At the expiration of this lease, the said premises to be 
delivered to said lessor, his heirs or assigns. The said lessee, and all who 
hold under him, hereby engage to pay double rent for every day they or any 
one else in their name shall hold on to the whole or any part of said prem¬ 
ises, after the expiration of this lease, or after forfeiture thereof. 

The said lessee is, under penalty of forfeiture, bound to keep said prem- 
mises free from any disorderly, bawdy, or gambling establishments, dram¬ 
shops, tippling-shops, beer-houses, or any nuisances whatsoever. And in 
case of any forfeiture of this lease, the said lessor, his heirs and assigns, 
may forthwith take possession of said premises, with all the improvements 
thereon, and shall be entitled to the same, any custom, usage, or law to the 
contrary notwithstanding. 

All improvements erected on said premises by said lessee or his assigns, 
or by any one who may claim under them, are bound for the payment of each 
quarterly installment of rent, and for the city, county, and State taxes, and 
all other taxes and demands as aforesaid, and for any arrears of rent or 
taxes; and in case of the punctual payment of the rent and taxes, as herein 
specified, the said lessee or his assigns is hereby authorized to remove all 
such improvements (and no others), at the expiration of this lease, which he 
or any one who may claim under him, may have erected on said premises 
during said term. 

In Testimony Whereof, The parties hereto have hereunto set their 
hands and seals to duplicate leases the day and year aforesaid. 

(Signature of lessor.) (Seal.) 

(Signature of lessee.) (Seal.) 

In Presence of 

( 226 .) 

A Mining Lease. 

This Indenture, Made this day of in the year 

of our Lord one thousand eight hundred and between (name and 

residence of the lessor) of the first part, and (name and residence of the lessee) 
of the second part, witnesseth, That the said party of the first part, for and in 


LEASES. 


634 

consideration of the covenants and agreements hereinafter contained on the 
part of the said party of the second part, and of one dollar in hand paid 
to the said party of the first part, the receipt whereof is hereby acknowl¬ 
edged, has granted and conveyed, and by these presents does grant and 
convey to the said party of the second part, his heirs, executors, administra¬ 
tors, and assigns, the right of entering in and upon the lands hereinafter 
described, for the purpose of searching for mineral and fossil substances, 
and of conducting mining and quarrying operations, to any extent he or they 
may deem advisable (but not to hold possession of any part of said lands for 
any other purpose whatsoever) paying for the site of buildings of any kind, 
necessary thereto, a reasonable rent. 

The said lands are situated (here state the situation of the premises leased, 
and describe them by metes and bounds, di?nensions , and references to other 
boundaries, so as to distinguish them perfectly.) 

And the said party of the second part hereby agree that he or his heirs, 
executors, administrators, or assigns, will pay or cause to be paid to the said 
party of the first part, his heirs or assigns, an annual rent of the amount of 
dollars, in four equal quarterly payments, payable severally on the fol¬ 
lowing days (here state the days when the payments are to be made, or what¬ 
ever other terms or times are agreed upon) and also covenants that no damage 
shall be done to or upon said lands and premises, other than may be neces¬ 
sary in conducting said operations. And it is agreed and covenanted by and 
between the parties hereunto, that this lease shall be and remain in full force 
and effect (subject to the proviso hereinafter stated) years from 

the date hereof, and no longer. But the said parties of the first and the 
second part, each for themselves, their heirs, executors, administrators, and 
assigns, covenant and agree, and this indenture is made with this express 
proviso, that if no mineral or fossil substance be mined or quarried, as now 
contemplated by said parties, within the period of years from the 

present time, then these presents, and everything contained herein, shall 
cease and be forever null and void. 

In Testimony Whereof, the parties to these presents have hereunto set 
their hands and seals the day and year first above written. 

(Signature of lessor.) (Seal.) 

(Signature of lessee.) (Seal.) 

Signed, Sealed, and Delivered in Presence of 

( 227 .) 

A Lease of Land supposed to contain Oil, Salt, or other 

Minerals. 

Articles of Agreement, Made and concluded this day of 

A.D. 18 between (tiame of lessor) of the township of 
County of and State of party of the first part, and 

(name and residence of the lessee) party of the second part. Witnesseth, 


FORMS OF LEASES. 


635 

That the said party of the first part, for himself and his heirs, executors, 
administrators, and assigns, for and in consideration of the sum of one dol¬ 
lar, the receipt of which is hereby acknowledged, and for the further consid¬ 
eration hereinafter mentioned, and on account of covenants hereinafter con 
tained, hereby leases to the said party of the second part, his heirs, executors, 
administrators, and assigns, the following-described piece or parcel of land, 
situated in the township of County of and State of 

bounded and described as follows ( describe the premises as hi 
the preceding Form). The said land more fully described in deed of convey¬ 
ance by (name of the grantor to the lessor) to the said party of the first part, 
containing acres, more or less, for the purpose of boring, mining, 

and operating for oil, salt, and other minerals on said land, for the term of 
years. 

Said second parties to have the exclusive right to mine for oil, salt, and 
other minerals, on said land, during the continuance of said term ; to have 
the privilege of taking sufficient coal and wood for conducting said boring 
and mining operations, and timber for derricks and mill-frames and for 
refineries, and the right to erect all necessary buildings upon said premises 
for carrying on the business of boring for oil, and mining, refining, and 
storing away oil and other minerals ; and to have the necessary roads to and 
from any well or wells that may be bored, or any mines ; and to have pos¬ 
session whenever they shall be ready to commence operations. And in case 
successful in obtaining oil or other minerals, agree to deliver to the said 
party of the first part ( here state the part or proportion which is to be given 
to the lessor) of all oil, salt, or other minerals obtained. Said party of the first 
part to find his own barrels, and remove the oil and other minerals belonging 
to him, as often as required by the second parties. And in case said second 
parties should not be successful in obtaining oil or other minerals, they shall 
have the right to remove all engines, tools, machinery, and buildings. And 
further, it is agreed that said second parties have the right to sub-lease said 
land for the purpose of boring for oil or other minerals ; the said lessee or 
lessees being granted all the rights and privileges herein granted to the said 
party of the second part. 

Witness our hands and seals this day of ,18 

(Signature of lessor) (Seal.) 
(Signature of lessee) (Seal) 

Witnesses. 

Personally appeared before me, a Justice of the Peace 

in and for the township of within the County aforesaid 

and did acknowledge the signing and sealing of the above agreement to be 
act and deed. 

Given under my hand this day of 18 

Justice of the Peace . 


636 


LEASES. 


( 228 .) 

An Assignment of a Lease. 

Know all Men by these Presents, That I (; name and residence of as¬ 
signor ) for and in consideration of the sum of dollars, lawful 

money of the United States, to me duly paid, by ( name and residence of 
assignee) have sold, and by these presents do grant, convey, assign, trans¬ 
fer and set over, unto the said {name of assignee) a certain indenture 
of lease, bearing date the day of in the year one 

thousand eight hundred and made by {name of the lessor in 

the lease assigned) whereby he leases to me the following-described prem¬ 
ises ( here describe the premises briefly), with all and singular the premises 
therein mentioned and described, and the buildings thereon, together with 
the appurtenances. 

To Have and to Hold the same unto the said {the name of the 
assignee) and his assigns, from the day of for and 

during all the rest, residue, and remainder yet to come of and in the 
term of years mentioned in the said indenture of lease, and 

all my rights and privileges in and under said lease ; subject nevertheless to 
the rents, covenants, conditions, and provisions therein also mentioned. 
And I do hereby covenant, grant, promise, and agree to and with the said 
{name of the assignee) that the said assigned premises now are free and 
clear of and from all former and other gifts, grants, bargains, sales, leases, 
judgments, executions, back rents, taxes, assessments, and incumbrances 
whatsoever. 

In Witness Whereof, I have hereunto set my hand and seal this 
day of one thousand eight hundred and 

{Signature.) {Seal.) 

Sealed and Delivered in the Presence of 

( 229 .) 

Landlord’s Notice to Quit for Non-Payment of Kent—Short 

Form. 

State of ss. A D. i8 

To {name of tenant). You being in possession of the following-described 
premises, which you occupy as my tenant {here describe the premises suffi¬ 
ciently to identify them) in the city {or township) of and county 

aforesaid, are hereby notified to quit and deliver up to me 
the premises aforesaid, in fourteen days from this date, according to law, 
your rent being due and unpaid. Hereof fail not, or I shall take a due course 
of law to eject you from the same. 

Witness . {Signature.) 


637 


FORMS OF LEASES, ETC. 


(230.) 

Landlord’s Notice to Quit for Non-Payment of Rent—an¬ 
other Form. 


State of City of (dqte) 18 

You are hereby notified to quit the premises situate (state the situation 
of the premises, giving township or city, and street and number) which I 
have leased to you, reserving rent, or pay and satisfy the rent due and 
in arrear, being $ which amount was due on the day of 

18 and is hereby demanded (you having neglected or 
refused to pay the amount so reserved, as often as the same has grown due, 
according to the terms of our contract, and there being no goods on the 
premises adequate to pay the rent so reserved, except such articles as are 
exempt from levy and sale by the laws of this State) within 
days from the date hereof, or I shall proceed against you as the law directs. 

Yours, etc. 


To (name of tenant) 


(231.) 


(Signature.) 


Landlord’s Notice to pay Rent due, or Quit. 

State of 

County of 

(Name of land/ord) landlord, against (name of tenant) tenant. 

Take Notice, That you are justly indebted unto me in the sum of 
for rent of (home, store, or other premises, describing the7n generally ) from 
(date when the re7it was due and payable ), which you are required to pay on 
or before the expiration of three days from the day of the service of this notice, 
or surrender up the possession of the said premises to in default 

of which shall proceed under the provisions of law to recover 

the possession thereof. 

Dated this day of , 18 

(Name of the landlord) Landlord. 

Ho (name of the tenant) Tenant, in possession of the premises above 
specified. 

(232.) 



Landlord’s Notice to leave at End of the Term. 

To (na77ie and address of the tenant .) 

Sir, —Being in the possession of a certain messuage or tenement, with the 
appurtenances, situate (describe the premises briefly) which said premises 
were demised to you by me for a certain term, to wit, from the 
day of A.D. 18 until the day of A.D. 

18 , and which said term will terminate and expire on the day and year 

last aforesaid, I hereby give you notice, that it is my desire to have again 


LEASES. 


638 

and re-possess the said messuage or tenement, with the appurtenances, and 
I therefore do hereby require you to leave the same upon the expiration of 
the said hereinbefore mentioned term. 

Witness my hand this day of city of 

A.D. 18 

(Signature .) 

( Witness .) 

( 233 .) 

Landlord’s Notice to Determine a Tenancy at Will. 

State of ss. A.D. 18 

To (name of tenant). You being in possession of the following-described 
premises, which you occupy as my tenant at will (describing the?n sufficiently 
to identify them) in the (city and street) aforesaid, are hereby notified to quit 
and deliver up to me the premises aforesaid (on such a day, stating here the 
day as far distant as is made necessary by the requisite length of notice) 
according to law, it being my intention to determine your tenancy at will. 
Hereof fail not, or I shall take a due course of law to eject you from the 
same. 

(Witness.) (. Signature .) 

( 234 .) 

Receipt for Rent, in use in New York. 

Rent payable 

The tenant mentioned below hereby agrees to pay the rent of the premi¬ 
ses occupied and used by on the first day of the term ; and 

engages to clean the entries, stairs, stoops, and privy thereof, weekly, in turn 
with other occupants, and not incumber the same with furniture, fuel, or 
rubbish, nor keep any hog, dog, or fowl, nor deposit ashes or garbage on said 
premises, nor in the sinks or privies, nor split wood on the hearth, floor, or 
yard. 

New York, 18 

Received from (name of tenant faying) dollars, for 

month’s rent, from 18 to 18 for 

(stone, brick, or other) house, No Street, in the city of New 

York. 

$ 

( 235 .)] 

Lease in use in the Province of Quebec. 

On this day, the of in the year of our Lord one 

thousand eight hundred and before the undersigned Public Notar , 

duly commissioned and sworn in and for the heretofore Province of Lower 
Canada, now the Province of Quebec, in the Dominion of Canada, residing in 
the city of Montreal, in the said Province, appeared (name, residence, and 
occupation of the lessor) who declared to have let and leased, and by these 


FORMS OF LEASES, ETC. 


639 

presents do let and lease, and promise to procure peaceable enjoyment unto 
{name, residence , and occupation of lessee') present and accepting lessee for 
for, during, and until the full end and term of 
to be accounted and reckoned on and from the day of the month 

of in the year ( insert a description of the premises 

leased , as directed in Form 211). With the whole the said lessee con¬ 
tent and satisfied, having seen and viewed the same. 

The present lease is thus made for and in consideration of the sum of 
current money of the said Province of Canada, per during 

the said term, which the said lessee do hereby covenant, promise, and 
agree, and bind and oblige to well and truly pay, or cause to be 

paid, to the said lessor or legal representatives, in and by even 

and equal payments of each ; the first payment whereof 

to become due and payable on the day of now next 

ensuing, and thus to continue as aforesaid during all the said term ; and, in 
further consideration, that the said lessee shall and do hereby promise 
and agree, and bind and oblige to pay the railway tax, the park 

tax, the school tax, the water tax, the yearly assessments of said leased 
premises, and every other tax, charge, and burden which may be imposed 
or levied thereon, during the said term ; and, further, that the said lessee 
shall furnish the said leased premises with a sufficient quantity of household 
furniture or goods to secure the payment of the said rent, keep the premises 
in repairs {reparations locatives ), during the said term, and deliver the same 
at the expiration of the present lease in as good order, state, and condition 
as the same may be found in at the commencement of the same, reasonable 
tear and wear and accidents by fire excepted. 

It is expressly agreed by and between the said parties that the said 
lessee shall not transfer right in the present lease, or sublet any 

part or portion of the above rented premises, without the consent, in writing, 
of the said lessor or representatives. 

The said lessee shall not make any alteration in the said leased premises 
without the consent of the said lessor or representatives ; and, in 

case any such alterations should be made, then the said lessee shall be 
bound to put the said leased premises in the same state in which they were 
at the commencement of the present lease, unless the said lessor prefer 
that the said alterations should remain, without any compensation being 
allowed to the said lessee for such alteration. 

Should any grosses reparations be deemed necessary in the said leased 
premises, the said lessee shall permit the same to be performed, without 
pretending or demanding any reduction in the said rent, damages, interest, 
or compensation ; provided always, that the said repairs be indispensable, 
and be finished within a reasonable time. 

The said lessee shall, during the said term, conform to the rules and 
regulations of police, and pay the sweeping of the chimneys of said leased 
premises during the said term. The said lessee shall, during the last three 


LEASES. 


640 

months of the present lease, allow such person or persons as may be desirous 
of obtaining a lease of the said premises to visit the same, and will suffer 
handbills for that purpose to be placarded and left on the said premises. 

The said lessee shall pay all extra premium of assurance that the com¬ 
pany, at which the premises now leased may be insured, shall exact in con¬ 
sequence of the business or works done and carried on therein by the said 
'essee. 

And for the execution hereof the said parties to these presents have 
fleeted domiciles; to wit, the said lessee at and upon the premises now 
leased, and the said lessor at place of residence above described, 

where, &c. 

Done and Passed at the said city of Montreal, in the office of 
the said notar , under the number thousand hundred and 

on the day, month, and year first above and before written, and 
signed by the said with and in the presence of said notar , 

these presents having been first duly read to the said parties by said 
no tar . 

( Signatures .) (Seals.) 

( 230 .) 

Lease in use in the Province of Quebec, known as 
“Private Lease.” 

This Indenture of Lease, Made between (name, residence, and occupa¬ 
tion of lessor), of the first part, and (name, reside7ice, and occupation of 
lessee) of the second part, 

Witnesseth, That the said do hereby lease for the term of 

year , from the unto the said hereby present 

and accepting for that is to say ( here describe the premises leased 

with sufficient distinctness) the said leased premises being well known to 
the said lessee having seen and examined the same before the execution 
of these presents, and with the said leased premises content and satis¬ 
fied. This lease is thus made subject to the following stipulations: viz., 
that the lessee shall make all repairs customarily made by tenants, during 
the present lease, and at the termination thereof shall peaceably surrender 
the said premises in the like condition as when taken possession of, reason¬ 
able tear and wear being allowed; that shall constantly keep the hereby 
leased premises furnished according to law for the security of the rent 
hereinafter stipulated ; that shall not make over interest 

in the present lease, or sublet the whole or any part of the premises hereby 
leased, without the consent of the lessor being first obtained in writing for 
that purpose. 

The said lessee promise to pay the yearly taxes or assessments for and 
during the said term, at whatever rate or amount or for whatever purpose 
the same may be levied, school lax and all other taxes and assessments, and 
perform all the requirements of the police and fire departments, to the per¬ 
fect exoneration of the lessor ; and during the last three months of the 


FORMS OF LEASES, ETC. 


641 

present lease shall allow such person or persons as may be desirous of 
obtaining a lease of the said premises, to visit the same at seasonable hours; 
and shall also permit notices of such intended lease to be put up on the 
premises. 

The lessee shall also pay any and all extra premiums levied in conse¬ 
quence of the business that may be carried on by 

It is especially and distinctly understood and agreed by and between the 
parties, that the furniture, goods, chattels, and effects of every kind and 
description belonging to the lessee shall be security for the payment of the 
rent for the entire term, and shall not be removed from the said leased 
premises until the rent for the whole term be paid, even if not due, any law, 
usage, or custom to the contrary notwithstanding, for without this condition 
the present lease would not have been made ; nothing herein contained, to 
be deemed or construed as comminatory or evasive, but of rigor. 

This lease is further made in consideration of the sum of current 

money of this Province, which the said lessee bind and oblige to well 

and truly pay to the said lessor or lawful representatives, in equal 

payments of the first payment whereof to be due and 

payable on the next. 

Signed in duplicate, at Montreal, this day of in the year 

of our Lord one thousand eight hundred and in the presence of 

( Signatures .) (Seals.) 

( 237 .) 

Lease of Land in use in Ontario and Other Provinces. 

This Indenture, Made the day of in the year 

of our Lord one thousand eight hundred and , between (name, 

residence, and occupation of the lessor ), the party of the first part, and 
(name, residence, and occupatio7i of lessee ) the party of the second part, 

Witnesseth, That in consideration of the rent, covenants, and agree¬ 
ments hereinafter reserved and contained, and to be paid, observed, and 
performed by the said part of the second part, executors, adminis¬ 
trators, and assigns, the said part of the first part ha demised 

and leased, and by these presents do demise and lease, unto the said part 
of the second part executors, administrators, and assigns, all th 

certain parcel or tract of land and premises situate, lying, and being 
(describe premises leased with sufficient distinctness to identify them per¬ 
fectly). 

To Have and to Hold the said parcel or tract of land, with the appur¬ 
tenances, unto the said part of the second part executors, administrators, 
and assigns, from the day of one thousand eight hundred 

and for the term of from thence next ensuing, and 

fully to be completed and ended, yielding and paying therefor unto the said 
part of the first part executors, administrators, and assigns, the yearly 
rent or sum of of lawful money of Canada, by equal 


41 


LEASES. 


642 

payments, on the in each and every year during the said term, the 

first payment to be made on the day of next ensuing the 

date hereof. 

And the said part of the second part doth hereby for heirs, 

executors, administrators, and assigns, covenant, promise, and agree with 
and to the said part of the first part, heirs, executors, administrators, 

and assigns, that the said part of the second part executors, 

administrators, and assigns, shall and will well and truly pay, or cause to be 
paid, to the said part of the first part, executors, administrators, or 

assigns, the said yearly rent hereby reserved, at the times and in manner 
hereinbefore mentioned for payment thereof, without any deduction or 
abatement whatsoever thereout, for, or in respect of, any rates, taxes, and 
impositions, assessment, or otherwise ; and will, during said term, discharge 
and pay all rates, taxes, assessments, and impositions now payable or here¬ 
after to become payable in respect of said premises ; and also shall and will 
perform all statute labor in respect of said premises, during the whole of the 
term hereby granted. 

Provided always, and it is hereby agreed by and between the said 
parties hereto, that if, at any time or times during the said term, the said 
rent, or any part thereof, shall be in arrear and unpaid for the space of thirty 
days after any of the days or times whereon the same ought to be paid as 
aforesaid, then it shall be lawful for the said part of the first part, heirs, 
executors, administrators, or assigns, to enter into and take possession of 
the premises hereby demised, whether the same be lawfully demanded or 
not, and the said premises to have again, repossess, and enjoy, as if these 
presents had never been executed, without the let, hindrance, or denial of 
the said part of the second part, heirs, executors, admin¬ 
istrators, or assigns ; and, further, that the non-fulfilment of the covenants 
hereinbefore mentioned, or any of them, on the part of the lessee or lessees, 
shall operate as a forfeiture of these presents, and the same shall be con¬ 
sidered null and void to all intents and purposes whatsoever ; and also, that 
the said part of the second part, executors, administrators, and assigns, 
shall not nor will, during the said term, grant or demise, or assign, transfer, 
or set over, or otherwise, by any act or deed, procure or cause the said 
premises hereby demised or intended so to be, or any part thereof, or any 
estate, term, or interest therein, to be granted, assigned, transferred, under¬ 
let, or set over unto any person or persons whomsoever, nor carry on any 
offensive trade or business on the premises, without the consent in writing, 
of the said part of the first part, heirs or assigns, first had and 

obtained. 

And the said part of the second part do hereby for heirs, 

executors, administrators, and assigns, covenant, promise, and agree, with 
and to the said part of the first part, heirs, executors, administrators, 
or assigns, that the said part of the second part, heirs, 

executors, administrators, or assigns, will, at the end of the term hereby 


FORMS OF LEASES, ETC. 


643 

granted, peaceably and quietly surrender and deliver up possession of the 
said premises hereby demised to the said part of the first part heirs, 
executors, administrators, or assigns. 

In Witness Whereof, The parties to these presents have hereunto set 
their hands and seals the day and year first above written. 

( Signatures .) (Seals.) 

Signed, Sealed, and Delivered in the Presence of 

( 238 .) 

Short House Lease in Use in Ontario and other Provinces. 

This Indenture, Made the day of in the year 

of our Lord one thousand eight hundred and in pursuance of the 

act respecting short forms of leases between (name, residence, and occupa¬ 
tion of the lessor ) hereinafter called the lessor of the first part, and (name, 
residence, and occupation of the lessee) hereinafter called the lessee of the 
second part, 

Witnesseth, That in consideration of the rents, covenants, and agree¬ 
ments hereinafter reserved and contained on the part of the said lessee 
executors, administrators, and assigns, to be paid, observed, and performed, 
he the said lessor ha demised and leased, and by these presents do 
demise and lease unto the said lessee, executors, administrators, and 

assigns, all th certain ( describe the premises leased with sufficient minute¬ 
ness to define them perfectly). 

Together with all the rights, members, and appurtenances whatsoever 
to the said premises belonging or appertaining. 

To Have and to Hold the said demised premises, with their appur¬ 
tenances, unto the said lessee, executors, administrators, and assigns, 

for and during the term of to be computed from the 

day of one thousand eight hundred and and from 

thenceforth next ensuing, and fully to be completed and ended, yielding and 
paying therefor yearly and every year, during the said term hereby granted 
unto the said lessor, heirs, executors, administrators, or assigns, the 
sum of dollars of lawful money of Canada, to be payable on the 

following days and times ; that is to say, on the 

days of and in each year during the said term, the 

first of such payments to become due, and be made, on the day 

of next, and the last of such payments to be made in advance, 

on the day of payment of rent preceding the expiration of the said term. 

And the said lessee covenant with the said lessor to pay rent, and to 
pay taxes, and to repair (reasonable wear and tear, and accidents by fire or 
tempest excepted), and to keep up fences, and not to cut down timber; and 
that the said lessor may enter and view the said repair ; and that the said 
lessee will repair according to notice, and will not assign or sublet without 
leave, and will not carry on any business that shall be deemed a nuisance 


644 


LEASES. 


on said premises ; and that he will leave the premises in good repair. {If 
there are any other agreements between the parties, they should be inserted 
here.) 

And also, that if the term hereby granted shall be at any time seized, or 
taken in execution, or in attachment, by any creditor of the said lessee, or if 
the said lessee shall make any assignment for the benefit of creditors, or, 
becoming bankrupt or insolvent, shall take the benefit of any act that may be 
in force for bankrupt or insolvent debtors, the said term shall immediately 
become forfeited and void, and the full amount of the current 
rent shall be at once due and payable ; and also, that if the said premises be 
destroyed, or so much injured as to become unfit for occupation, by fire or 
other casualty, not caused by the wilful default or neglect of the said lessee, 
his executors, administrators, or assigns, the said term hereby demised shall 
cease, and the current rent shall be fully apportioned, and the due 

proportionate part thereof shall be at once due and payable. 

Proviso for re-entry by the said lessor on non-payment of rent or non¬ 
performance of covenants, or seizure or forfeiture of the said term for any 
of the causes aforesaid ; the said lessor covenant with the said lessee for 
quiet enjoyment. 

In "Witness Whereof, The said parties to these presents have hereunto 
set their hands and seals. 

Signed\ Sealed,\ and Delivered in the Presence of 

( 239 .) 

Lease of Land in use Generally in the British Provinces. 

This Indenture, Made the day of in the year 

of our Lord one thousand eight hundred and between {name, 

residence, and occupation of the lessor ) of the one part, and {name, residence, 
and occupation of the lessee) of the other part, 

Witnesseth, That for and in consideration of the rents, covenants, agree¬ 
ments, and provisos hereinafter reserved and contained, and which by and 
on the part and behalf of the said executors, administrators, and 

assigns, are to be paid, kept, done, and performed, he the said 
ha granted, demised, leased, set, and to farm letten, and by these presents 
do grant, demise, lease, set, and to farm let, unto the said exec¬ 

utors, administrators, and assigns, all that tract, piece, or parcel of land 
situate, lying, and being on lot or township number in the County of 

and the Province of bounded and described 

as follows ; that is to say {here describe the premises leased) containing, by 
estimation, acres, be the same a little more or less, together with 

all buildings, woods, underwoods, ways, waters, watercourses, profits, com¬ 
modities, privileges, advantages, and appurtenances whatsoever to the said 
premises belonging, or in anywise appertaining. 

To Have and to Hold the said tract, piece, or parcel of land, and prem- 


FORMS OF LEASES, ETC. 


645 


ises hereby demised, with their appurtenances, unto the said 
executors, administrators, and assigns, from the day of 

for and during and until the full end and term of years from 

thence next ensuing, and fully to be complete and ended ; subject, neverthe¬ 
less, to the quit-rents to become due, exceptions, reservations, covenants, 
easements, and conditions in the original grant or letters-patent of the said 
reserved and contained. Yielding and paying therefor yearly, 
and in every year during the said term hereby granted, unto the said 
heirs or assigns, the clear yearly rent or sum of without making 

any deduction or abatement whatever for or in respect of any present or 
future quit-rents, land taxes, or other parliamentary, legislative, colonial, or 
parochial taxes, assessments, payments, or impositions whatsoever, by 
yearly payments ; that is to say, on the day of in 

every year, the first payment to become due and be paid on day 

of . And the said do for heirs, exec¬ 

utors, and administrators, covenant, promise, and agree to and with the said 
heirs and assigns, in manner following ; that is to say, that 
the said executors, administrators, and assigns, shall and will, 

from time to time, and at all times during the continuance of the term hereby 
granted, well and truly pay, or cause to be paid, unto the said 
heirs and assigns, the said yearly rent hereby reserved, upon the days and 
times, and in the manner hereinbefore mentioned for the payment of the 
same, according to the true intent and meaning of these presents. And 
also, the said executors, administrators, and assigns, shall 

and will pay, satisfy, and discharge, or cause to be paid, satisfied, and dis¬ 
charged, all and all manner of quit-rents, land taxes, and other parliamen¬ 
tary, legislative, or parochial taxes, rates, assessments, payments, or impo¬ 
sitions whatsoever, now or at anytime hereafter during the said term hereby 
demised, payable, or to become payable, for or in respect of the said prem¬ 
ises, or any part of them, or the said yearly rent or any part thereof. 

Provided always, nevertheless, and these presents are upon this 
express condition, that if the said yearly rent hereinbefore reserved, or any 
part thereof, shall be in arrear for the space of after the same 

ought to have been paid as aforesaid (although no legal or formal demand 
shall have been made for the same), that then, and in every such case, and 
at all times Jiereafter, it shall and may be lawful to and for the said 
heirs and assigns, either to sue or distrain for the same, or into or upon the 
said demised premises, or into any part thereof, in the name of the whole, 
wholly to re-enter, and the same to have again, retain, repossess, and enjoy, 
as in former state ; and the said and other occupiers 

and possessors thereof, thereout and from thence utterly to expel, put out, 
and remove, anything hereinbefore contained to the contrary thereof in any¬ 
wise notwithstanding. And the said for heirs and assigns, 

do hereby covenant, promise, and agree to and with the said 
executors, administrators, and assigns, that paying the said yearly rent 


MORTGAGES OF PERSONAL PROPERTY. 


646 

hereby reserved, and performing the covenants and agreements hereinbefore 
mentioned and contained, and which on part and behalf are or ought 

to be paid, done, and performed (subject, nevertheless, as aforesaid), shall 
and may peaceably and quietly have, hold, use, occupy, possess, and enjoy 
the said hereby demised premises, with the appurtenances, for all the term 
hereby granted, without the lawful let, suit, trouble, denial, eviction, ejection, 
interruption, or disturbance whatsoever, of, from, or by the said 
heirs or assigns, or of, from, or by any other person or persons lawfully 
claiming or to claim the said hereby demised premises, or any part or parcel 
thereof. 

In Witness Whereof, I, the said ( name of lessor ), have hereunto sub¬ 
scribed my name and affixed my seal, at on the day of 

in the year of our Lord 

(Name of grantor.) (Seal.) 

Executed and Delivered in the Presence of 


CHAPTER XXXII. 

MORTGAGES OF GOODS AND CHATTELS, OR PERSONAL 
PROPERTY. 

Mortgages are now often made of personal property. Any 
instrument will answer the purpose, which would suffice as a 
bill of sale of the property, and which contains, in addition to 
the words of sale and transfer, a clause providing for the avoid¬ 
ance of it when the debt is paid. I append to this chapter 
forms for this purpose. When the mortgagor of personal 
property retained possession, it was formerly doubtful what 
security the mortgagee had. Now, however, it is generally 
provided by statute, that the mortgagor may retain possession, 
if the mortgage be recorded. 

These instruments should always be recorded according to 
the provisions of the statute of the State in which they are 
made ; although the general rule would apply to them, that they 
would operate without record as to all parties having notice or 
knowledge of them. The statutes respecting mortgages of 
personal property always provide for an equity of redemption, 
which is usually very much shorter than that of land. A 
frequent period is sixty days. The requirements of the statute 
in respect to notice, foreclosure, etc., must be strictly followed. 



MORTGAGE OR PLEDGE OF PERSONAL PROPERTY. 

It used to be thought that a personal mortgage might be made 
to cover property subsequently acquired by the mortgagor. 
Thus, a dealer in dry goods would mortgage all his stock to 
secure some creditor, and provide in the mortgage that it should 
operate upon all his goods and merchandise subsequently 
acquired by him. But it has been held that such a clause has 
no effect; because no man can make a mortgage of property 
which he does not own at the time. We give annexed to this 
chapter the laws of all the States relating to mortgages of 
personal property. 

THE PLEDGE OF PERSONAL PROPERTY. 

A pledgee is bound to take ordinary (not extreme) care of 
the thing pledged; and, if it be lost or injured for want of such 
care, he is answerable. He cannot use it, except at his own 
peril; that is, he is liable for any injury caused by using it, 
even if it was not his fault. If the thing—as a horse—needs 
use for its own safety, then the pledgee may use it for this pur¬ 
pose, and is liable only for an injury caused by his negligence. 
He must account with the pledgor for the income, increase, or 
profits. 

One difference between a mortgagee and a pledgee is this : 
A mortgagee need not take possession, for the mortgagor may 
retain it, and now this is provided for, as we have seen, by 
recording the mortgage. But if a thing is given in pledge, the 
pledgee must have and keep possession of it. 

The most important difference is this. A mortgagee may 
sell and transfer his mortgage, and his transferee may transfer 
it again, and so on; and when the debt is paid, the mortgagor 
reclaims it from whomsoever has it then. But if a pledgee 
sells the pledge before the debt is due, it is held that he is at 
once answerable to the pledgor for its full value, although the 
debt be not paid. 

Some cases of this kind have been carried very far in New 
York. It is held there,—and on grounds which may perhaps 
suffice to make it law everywhere,—that if A lends money to 
B, and takes stocks in pledge, A cannot sell these stocks and 
keep the proceeds, and replace the stock and return it when 


648 MORTGAGES OF PERSONAL PROPERTY. 

the debt is paid. He can do nothing but keep the stock ; and 
if he sells it, the pledgor may recover at once its full value, and 
the pledgee will have no security for his debt. In such a case, 
a pledgee, being sued, offered the testimony of brokers and 
others to prove a uniform and established usage in the city of 
New York thus to sell or use pledged stock until the debt was 
paid; but the court said the usage was illegal, and refused to 
receive the evidence. 

It is certain that after the debt is due and payable, and after 
demand if it be payable on demand, the pledgee may have a 
decree in chancery for a sale of the pledge, or may sell it 
himself '.provided he first gives a reasonable notice to the pledgor, 
and then sells it, after a reasonable delay, in a proper manner, 
by a public sale at auction ; and uses all reasonable precautions 
to get its value, as by advertisement, etc. ; and does not buy it 
himself, directly or indirectly; and conducts himself in all 
respects honestly ; and then he must account for the proceeds. 

Sometimes the parties agree, when the pledge is given, or 
afterwards, how the pledge shall be treated, or how sold if not 
redeemed, etc. ; and such agreements, if fair and reasonable, 
would undoubtedly be binding on both parties. 

It is agreed that negotiable paper is excepted from the 
common rule; and the pledgee of that may sell or discount it 
before the debt is due ; and must account for it, or its proceeds, 
if the debt is paid and the paper redeemed, or for the balance 
if he applies it to payment of the debt. 

A loan of stock is not like a pledge of stock, because it 
authorizes the borrower to sell or pledge it, or use it in any 
way, at any time; but he must replace and return the same 
quantity of the same stock, when it is called for. If he could 
not thus make use of the stock, the loan of it would be of no 
benefit whatever to the borrower. But he cannot thus use 
stock pledged to him, unless by a special agreement which 
permits this use. 

A pledgee, who receives a pledge to secure one or more 
specific debts, cannot retain it to secure other and further 
debts of the pledgor, unless with his consent. This consent 
may be express, or implied from words or circumstances which 
show that such was the understanding of the parties. 


FORMS OF MORTGAGES OF PERSONAL PROPERTY. 


649 


( 240 .) 

A Mortgage of Personal Property. 

Know all Men by these Presents, That I ( name of mortgagor) of the 
town of County of and State of for 

and in consideration of dollars, to me in hand paid by ( name 

of mortgagee) of the town of County of and State 

aforesaid, do sell and convey to the said ( name of mortgagee) the following 
goods and chattels, to wit (list or schedule of the articles , specifying them 
with sufficient distinctness to make it certain what they are) warranted free 
of incumbrance, and against any adverse claims : Upon condition, that if the 
said (name of the ?nortgagor) pay to the said (na7ne of the mortgagee) dollars 
and interest, in year , agreeably to a promissory note of this date, 

for that sum, payable to the said (name of ?nortgagee) or order, on demand, 
with interest, this deed shall be void, otherwise in full force and effect. 

The aforesaid Parties Agree, That, until the condition of this instru¬ 
ment is broken, the said property may remain in possession of the said (name 
of mortgagor), but after condition broken the said (name of ?nortgagee) may 
at his pleasure take and remove the same, and may enter into any building 
or premises of the said (name of the mortgagor) for that purpose. 

Witness our hands and seals this day of A.D. 

(Signature of mortgagor.) (Seal.) 

(Signature of mortgaged) (Seal.) 

Sealed and Delivered in the Presence of 


State of 
County of 

Be it Remembered, That on this day of 

eighteen hundred and before me, the undersigned, Notary Pub¬ 

lic in and for said County and State, duly commissioned and qualified, came 
who is known to me to be the same person whose name is sub¬ 
scribed to the foregoing instrument of writing, as party thereto, and he 
acknowledged the same to be his act and deed, for the purpose therein men¬ 
tioned. 

In Testimony Whereof, I have hereunto set my hand and affixed my 
official seal, at office, in the city of the day and year last afore¬ 

said. 

Notary Public. 



( 241 .) 


A Mortgage of Personal Property, with Warranty. 
Know all Men by these Presents, That I, (name and residence of 
mortgagor) in consideration of the sum of to me in hand paid by 

(name and residence of 7nortgagee) the receipt whereof is hereby acknowl- 


MORTGAGES OF PERSONAL PROPERTY. 


650 

edged, have granted, bargained, and sold, and by these presents do grant, 
bargain, and sell, unto the said {name of mortgagee) the following articles 
of personal property ; that is to say ( list or schedule as in Form 240). 

To Have and to Hold all and singular, the said goods and chattels, unto 
the said ( name of the ?nortgagee) and his executors, administrators, and assigns, 
to his and their use forever. And I the said mortgagor, for myself and for 
my executors and administrators, do covenant to and with the said mortgagee, 
and with his executors, administrators, and assigns, that I am lawfully pos¬ 
sessed of the said goods and chattels, as of my own property ; that the same 
are free from all incumbrances, and that I will, and my execu¬ 

tors and administrators shall, warrant and defend the same to the said mort¬ 
gagee, his executors, administrators, and assigns, against the lawful claims 
and demands of all persons. 

Provided Nevertheless, That if the said mortgagor, his executors or 
administrators, shall well and truly pay unto the said mortgagee, his execu¬ 
tors, administrators, or assigns, the sum of dollars, in 

months from the date hereof (or on a certam day , stating the day when the 
money is to be ftaid) with interest at per cent., then this deed, as also 

a certain promissory note bearing even date herewith, signed by the 

said mortgagor, whereby he promises to pay the said mortgagee the said 
sum and interest at the time aforesaid, shall both be void ; otherwise shall 
remain in full force and virtue. 

And Provided Also, That until default by the said mortgagor, or his 
executors and administrators, in the performance of the condition aforesaid, 
or of some part thereof, it shall and may be lawful for him or them to keep 
possession of the said granted property, and to use and enjoy the same ; but 
in case of such default, or if the same or any part thereof shall be attached, 
at any time before payment as aforesaid, by any other creditor or creditors 
of the said mortgagor, or if the said mortgagor, or his executors or adminis¬ 
trators, shall attempt to sell the same, or any part thereof, without notice to 
the said mortgagee, or his executors, administrators, or assigns, and without 
his or their assent to such sale in writing expressed, or shall remove the 
same, or any part thereof, from the place in which they now are, without 
such notice and assent, then it shall be lawful for the said mortgagee, or his 
executors, administrators, or assigns, to take immediate possession of the 
whole of said granted property, to his and their own use. 

In Testimony Whereof, I have hereunto set my hand and seal this 
day of in the year of our Lord one thousand eight 

hundred and 

(Signature) (Seal) 

Executed and Delivered in the Presence of 


FORMS OF MORTGAGES OF PERSONAL PROPERTY, 


651 


( 242 .) 

A Mortgage of Personal Property, with a Power of Sale. 

Know all Men by these Presents, That I, ( name>of mortgagor) of the 
town (or city) of in the County of and State of 

, in consideration of dollars, to me paid by (na, 7 ne 

of mortgagee) of the town (or city) of in the County of 

and State of the receipt whereof is hereby acknowledged, do 

hereby grant, bargain, and sell unto the said ( name of mortgagee) and his 
assigns, forever, the following goods and chattels, to wit (list or schedule, as 
in Form 240). 

To Have and to Hold, All and singular the said goods and chattels unto 
the mortgagee herein, and his assigns, to their sole use and behoof forever. 
And the mortgagor herein, for himself and for his heirs, executors, and 
administrators, does hereby covenant to and with the said mortgagee and 
his assigns, that said mortgagor is lawfully possessed of the said goods and 
chattels, as of his own property ; that the same are free from all incumbrances, 
and that he will warrant and defend the same to him the said mortgagee and 
his assigns, against the lawful claims and demands of all persons. 

Provided, Nevertheless, that if the said mortgagor shall pay to the mort¬ 
gagee, on the day of in the year the 

sum of dollars, then this mortgage is to be void, otherwise to 

remain in full force and effect. 

And Provided Further, That until default be made by the said mort¬ 
gagor in the performance of the condition aforesaid, it shall and may be law¬ 
ful for him to retain the possession of the said goods and chattels, and to use 
and enjoy the same ; but if the same or any part thereof shall be attached or 
claimed by any other person or persons at any time before payment, or the 
said mortgagor, or any person or persons whatever, upon any pretence, shall 
attempt to carry off, conceal, make way with, sell, or in any manner dispose 
of the same or any part thereof, without the authority and permission of the 
said mortgagee or his executors, administrators, or assigns, in writing 
expressed, then it shall and maybe lawful for the said mortgagee, with or with¬ 
out assistance, or his agent or attorney, or his executors, administrators, or 
assigns, to take possession of said goods and chattels, by entering upon any 
premises wherever the same may be, whether in this county or State, or else¬ 
where, to and for the use of said mortgagee or his assigns. And if the moneys 
hereby secured, or the matters to be done or performed, as above specified, 
are not duly paid, done or performed at the time and according to the condi¬ 
tions above set forth, then the said mortgagee, or his attorney or agent, or 
his executors, administrators, or assigns, may by virtue hereof, and without 
any suit or process, immediately enter and take possession of said goods and 
chattels, and sell and dispose of the same at public or private sale, and after 
satisfying the amount due, and all expenses, the surplus, if any remain, shall 
be paid over to said mortgagor or his assigns. The exhibition of this mort- 


MORTGAGES OF PERSONAL PROPERTY. 


652 

gage shall be sufficient proof that any person claiming to act for the mort¬ 
gagee is duly made, constituted, and appointed agent and attorney to do what¬ 
ever is above authorized. 

In Witness Whereof, The said mortgagor has hereunto set his hand 
and seal this day of in the year of our Lord one thou¬ 

sand eight hundred and 

(Signature of mortgagor) (Seal.) 
Signed\ Sealed , and Delivered in the presence of 

State of 

County. 

This mortgage was acknowledged before me, by (the mort¬ 
gagor)) this day of A.D. 18 



( 243 .) 

Mortgage of Personal Property, with Power of Sale- 
another Form. 

Know all Men by these Presents, That I (name and residence of mort¬ 
gagor) in consideration of the sum of to me paid by (name and 

residence of mortgagee) the receipt whereof is hereby acknowledged, have 
granted, bargained, and sold, and by these presents do grant, bargain, and 
sell unto the said (name of mortgagee) the following named and described 
articles of personal property ; that is to say (here follows the list or schedule 
and description of the articles mortgaged , as in Form 240). 

To Have and to Hold, All and singular, the said goods and chattels, 
unto the said (name of ?nortgagee) and his executors, administrators, and 
assigns, to his and their sole use forever. And I, the said mortgagor, for 
myself and my executors and administrators, do covenant to and with the 
said mortgagee and his executors, administrators, and assigns, that I am 
lawfully possessed of the said goods and chattels, as of my own property: 
that the same are free from all incumbrances ; and that I will, and my exec¬ 
utors and administrators shall, warrant and defend the same to the said 
mortgagee and his executors, administrators, and assigns, against the lawful 
claims and demands of all persons. 

Provided Nevertheless, That if the said mortgagor, or his executors or 
administrators, shall well and truly pay unto the said mortgagee, or his exec¬ 
utors, administrators, or assigns, the sum of then this deed, as 

also a certain promissory note bearing even date herewith, signed by the 
said mortgagor, whereby he promises to pay the said mortgagee the said sum 
and interest at the time aforesaid, shall both be void, and otherwise they 
shall remain in full force and virtue. 

And Provided Also, That until default by the said mortgagor or his 
executors and administrators, in the performance of the condition aforesaid, 
or of some part thereof, it shall and may be lawful for him or them to keep 


ABSTRACT OF CHATTEL MORTGAGES. 


653 

possession of the said granted property, and to use and enjoy the same ; but 
in case of such default, or if the same or any part thereof shall be attached 
at any time before payment as aforesaid, by any other creditor or creditors 
of the said mortgagor, or if the said mortgagor, his executors or administra¬ 
tors, shall attempt to sell the same or any part thereof without notice to the 
said mortgagee or his executors, administrators, or assigns, and without his 
or their assent to such sale in writing expressed ; or shall remove the same, 
or any part thereof, from the place where they now are, without such notice 
and assent, then it shall be lawful for the said mortgagee, his executors, 
administrators, or assigns, to take immediate possession of the whole of said 
granted property to his or their own use, and to sell and dispose of the whole, 
or of so much of said granted property at public auction, as shall produce a 
sum of money sufficient to pay and discharge the above-mentioned debt or 
liability, with interest, and all costs and charges of keeping and selling the 
same, and all just and equitable liens then existing thereon, without further 
notice or demand, except giving day’s notice of the time and place of 

said sale to said mortgagor or his legal representatives ; and after the said 
debt or liability, with interest, costs, charges, and liens, shall be so discharged 
and satisfied, the surplus of the money arising from said sale and the resi¬ 
due of said granted property, shall be paid and restored to said mortgagor 
or his legal representatives, discharged from all claim under this mortgage. 

In Testimony Whereof, I the said (name of mortgagor) 

have hereunto set my hand and seal this day of in 

the year of our Lord one thousand eight hundred and 

(. Signature .) (Seal.) 

Executed and Delivered in Presence of 

ABSTRACT OF THE LAWS OF THE STATES AND 
TERRITORIES, CONCERNING CHAT¬ 
TEL MORTGAGES. 

ALABAMA.— Personal property may be mortgaged, but, to be good 
against creditors and purchasers without notice, the mortgage must be 
recorded in the county where the grantor lives, and also in the county where 
the property is at the time of conveyance. If removed to another county, 
the mortgage must be recorded there within six months. Mortgages of per¬ 
sonal property usually contain powers of sale, and are foreclosed according 
to the provisions of the mortgage. 

ARIZONA.— Chattel mortgages may be made on the following prop¬ 
erty : Upholstery and furniture used in hotels and public boarding-houses, 
for the purchase money thereof; saw-mill, grist-mill, and steamboat machin¬ 
ery ; tools and machinery used by machinists, foundry-men, and other 
mechanics; steam boilers, steam engines, locomotives, engines, and the 
rolling stock of railroads; printing presses and other printing material; 
instruments and chests of a surgeon, physician, or dentist; libraiies of all 


MORTGAGES OF PERSONAL PROPERTY. 


654 

persons; machinery and apparatus for mining purposes; growing crops, 
grain in store or in field; teams and implements pertaining to farms, and 
stock of all kinds on farms. The mortgage must set forth the residences of 
the mortgagor and mortgagee, their profession, trade, or occupation, the sum 
to be secured, the rate of interest to be paid, and when and where payable, 
and both parties must make affidavit that the mortgage is bona fide , and not 
made to defraud or delay creditors. The mortgage, with the affidavit 
annexed, must be recorded in the county where the mortgagor lives, and also 
where the property is situated. Foreclosure is by action, when the property 
will be sold under the direction of the court. 

ARKANSAS.— Chattel mortgages must be acknowledged before some 
person authorized by law to take acknowledgments, and filed or recorded 
in the county where the mortgagor resides, and are liens on the property 
mortgaged only from such time. If filed without being recorded, the lien 
expires in one year, unless within thirty days before the expiration of the 
year the mortgagor files an affidavit showing his interest in the mortgaged 
property, and the amount due. After condition broken, suit may be brought 
on the mortgage, and judgment rendered for the sale of the property and the 
recovery of the debt against the defendant personally; and the sale shall be 
on three months credit, the purchaser to execute a bond with good surety. 
If the property does not bring two-thirds of the appraised value, the sale 
may be postponed for sixty days, unless the right of appraisal is expressly 
waived in the mortgage. 

CALIFORNIA.— The following property may be mortgaged: 1. Loco¬ 
motives and rolling stock of a railroad company. 2. Steamboat machinery, 
and machinery used by machinists, foundrymen, and mechanics. 3. Steam 
engines and boilers. 4. Mining machinery. 5. Printing presses and mate¬ 
rials. 6. Professional libraries. 7. Instruments of surgeons, physicians, 
surveyors, and dentists, and the instruments, negatives, and fixtures of pho¬ 
tograph galleries. 8. Upholstery and furniture used in hotels and boarding¬ 
houses, for the purchase-money of the articles mortgaged. 9. Growing 
crops. Apparatus used in the manufacture of wine, fruit brandy, syrup, 
or sugar. The mortgage is void against creditors, unless accompanied by 
an affidavit of all the parties that it is made in good faith, and without any 
design to defraud creditors, and unless it is acknowledged and recorded in 
the same manner as a deed of real property, in the office of the recorder for 
the county where the mortgagor resides, and also where the property is situ¬ 
ated. Chattel mortgages may be foreclosed, as in the case of pledges, by 
sale after demand; the mortgagee must give notice of the time and place of 
sale, which must be by public auction, and, after deducting the amount due 
on the mortgage, he must return the balance to the mortgagor. Or he may 
foreclose by action, and the court, by its judgment, may direct a sale of the 
property, or of so much as may be necessary, and the application of the pro¬ 
ceeds of the sale to the payment of the amount due, and all costs and 
expenses; and any surplus is to be returned to the court; and the mort¬ 
gagee may be authorized to purchase at the sale. 


ABSTRACT OF CHATTEL MORTGAGES. 


655 

COLORADO.— The property must be delivered to the mortgagee, or the 
mortgage acknowledged before an officer in the precinct where the parties 
reside, or where the property is, and recorded in the county where the prop¬ 
erty, or a greater part, is, and it is then valid for two years. When chattel 
mortgages are in the form of trust deeds, they contain' a power of sale by 
the trustee at public auction, on giving certain days’ notice. Otherwise there 
is no statute provision in regard to foreclosure. After default the mort¬ 
gagee must not delay taking possession of the property, or his lien may be 
lost. 

CONNECTICUT.— Machinery, engines, or implements situated or used 
in any manufacturing or mechanical establishment, presses, types, etc., per¬ 
taining to a printing establishment, household furniture used in housekeep¬ 
ing, hay in a building, tobacco in the leaf, pianos, organs, and melodeons, 
and any instrument used by a band or orchestra, may be mortgaged. The 
mortgage must be executed, acknowledged, and recorded in all respects as a 
deed of land, and, on breach of condition, may be foreclosed by order of 
court. 

DAKOTA.— A chattel mortgage must be in writing, executed in the pres¬ 
ence of two witnesses, and recorded in the county where the property, or a 
part thereof, is situated. It ceases to be valid at the expiration of three 
years from the date of filing, unless within thirty days before the expiration 
of that time a copy of the mortgage and statement of the amount then due 
thereon, sworn to by the holder, are filed anew. Foreclosure may be made 
by public sale after ten days’ notice, or by action in court. 

DELAWARE.— Chattel mortgages must be acknowledged and recorded 
within ten days, and the lien continues for three years. Mortgages are fore¬ 
closed by intervention of court, and there is no redemption of the property 
sold. 

DISTRICT OF COLUMBIA.—Security on chattels is usually taken by 
deeds of trust, which must be recorded within twenty days, and which 
usually confer on the trustee power to sell in case of default after giving 
notice by advertisement. 

FLORIDA.— Unless the property mortgaged is delivered to the mort¬ 
gagee, the deed must be executed in the same manner as deeds of real prop¬ 
erty (see Deeds, etc.), and recorded in the office of records for the county 
where the property is at the time of the execution of the mortgage. The 
mortgage is foreclosed by petition to the circuit court for the county where 
the property is, two months before the term of the court, at which judgment 
may be rendered. When the property remains with the mortgagor, the 
mortgagee may, by making an affidavit of the amount due, have a writ of 
attachment, the officer to hold the property until the decree of foreclosure is 
entered. 

GEORGIA.— The mortgage must clearly indicate the creation of the 
lien, specify the debt and the property to be secured. It must be executed 
in presence of, and attested or proved by or before a notary public, or a 


MORTGAGES OF PERSONAL PROPERTY. 


656 

judge or clerk of court, and recorded within thirty days in the county where 
the mortgagor resides, and in the county where the property is; but record 
at any time is due notice. In order to foreclose, the mortgagee must go 
before some officer of the State authorized to administer oaths (or a com¬ 
missioner for Georgia, if he be a non-resident), and make an affidavit of the 
amount due, and that the mortgagor, if a resident of the State, resides in the 
county where the foreclosure is made, which affidavit shall be affixed to the 
mortgage, and the mortgage filed in the office of the clerk of the superior 
court for the county where the mortgagor resides; and the clerk shall there¬ 
upon issue an execution directing the sale of the property. The sheriff 
shall levy on the property, and, after advertising weekly for four weeks, may 
sell the same. When the debt is not over one hundred dollars, the proceed¬ 
ings may be before a justice of the peace, who may issue execution after 
notice to the mortgagor, and the constable may sell after advertising sale in 
three or more public places in his district. 

IDAHO.— Mortgages of personal property must state the residence of 
the mortgagor and mortgagee, the sum to be secured, rate of interest, and 
when and where payable, and the mortgagor must make affidavit that the 
mortgage is bona fide, and made without design to defraud or delay creditors. 
The mortgage and affidavit attached must be recorded in the county where 
the mortgagor resides, and also in that in which the property is situated. 
Foreclosure must be by action, unless the mortgage contains a power of 
sale. 

ILLINOIS.— Mortgages of personal property are not valid unless the 
property is delivered to the mortgagee, or unless the instrument is acknowl¬ 
edged before a justice of the peace in the district where the mortgagor 
resides, or, if he be a non-resident, before any officer authorized to take 
acknowledgments of deeds, and recorded in the county where he resides, 
or, if he is a non-resident, in the county where the property is. The 
lien expires in two years from the date of record, and can only be 
extended by giving a new mortgage. After default, the mortgage must be at 
once foreclosed, or the lien will be lost. Chattel mortgages usually contain 
a power of sale by the sheriff of the county where the property is, in which 
case the sheriff may execute the power by giving legal notice of thirty days, 
and selling the same as therein directed, and he may execute all proper con¬ 
veyances ; and the mortgagee is authorized to purchase at such sale. 

INDIANA.—If the goods are not delivered, the mortgage must be ac¬ 
knowledged in the same manner as deeds of real property, and recorded within 
ten days in the county where the mortgagor lives. The mortgage is deemed of 
record from the time it is left with the recording officer. There is no strict fore¬ 
closure. The mortgagee is entitled to possession of the property on breach 
of the condition, and may bring an action to recover the same, but the equity 
of redemption of the mortgagor can be extinguished only by public sale 
after proper notice, or by a judicial sale on foreclosure proceedings. 

IOWA.— The mortgage is not valid unless it is in writing, signed, 
acknowledged, and recorded in the county where the holder of the property 


ABSTRACT OF CHATTEL MORTGAGES. 


657 

resides. Chattel mortgages for the payment of money only, and where the 
time of payment is fixed, may be foreclosed by notice and sale. The notice 
must contain a full description of the property, and the time and place of 
sale, with the terms of the same,' such notice to be served on the mortgagor 
and purchasers from him, and on all persons having recorded liens subse¬ 
quent to the mortgage, and afterwards published in the same manner as in 
case of sale of property on execution, and the purchaser takes all the title 
and interest in the mortgaged property. 

KANSAS. —Unless the property be delivered to the mortgagee, the 
mortgage, or a copy of it, must be deposited in the office of the register of 
deeds for the county where the mortgagor resides, or where the property is 
if he is a non-resident, and, in order to preserve the lien, an affidavit must 
be filed within thirty days of the expiration of each year by the mortgagee, 
stating that his interest is a continuing one, and the amount then due. The 
mortgage need not be acknowledged. After condition broken, the mort¬ 
gagee or his assignee may proceed to sell the mortgaged property, or so 
much thereof as is necessary to satisfy the mortgage, having first given 
notice of the time and place or the sale by written or printed handbills 
posted in at least four different places in the township or city in which the 
property is to be sold, at least ten days before the sale. 

KENTUCKY. — Chattel mortgages must be acknowledged, and recorded 
in the office of the clerk of the court for the county where the property is. 
They may be foreclosed by bill in equity, if the mortgagee takes posses¬ 
sion, and the mortgagor has five years to redeem. 

LOUISIANA. — Chattel mortgages are unknown. 

MAINE. — Mortgages of personal property are not valid unless the 
property is delivered, or the mortgage is recorded by the clerk of the town 
where the mortgagor resides, or, if he is a non-resident, in the town where 
the property is when the mortgage is made. After condition broken, the 
mortgagee or his assignee may give the mortgagor written notice of his 
intention to foreclose, by leaving a copy thereof with the mortgagor, or, if 
he is absent from the State, by leaving such copy at his last and usual place 
of abode, or by publishing a copy once a week, for three successive weeks, 
in one of the principal papers of the town where the mortgage is recorded. 
The notice, with an affidavit of service, or copy of the publication, must be 
recorded where the mortgage is recorded, and all right of redemption is for¬ 
feited within sixty days after such notice is recorded. If the mortgagee is a 
non-resident, he must record with such notice his appointment of an agent 
in the same town to receive satisfaction of the mortgage, to whom tender or 
payment may be made. Notes given for the purchase of property, with the 
proviso that it shall remain the property of the payee until paid, are subject 
to the same provisions as to record and foreclosure as chattel mortgages. 

MARYLAND. —Mortgages and bills of sale must contain the names of 
the parties, the consideration, and a description of the property mortgaged, 
and an affidavit by the mortgagor that the consideration named is true an(J 
42 


MORTGAGES OF PERSONAL PROPERTY. 


658 

bona fide as set forth; they must be signed, sealed, and dated, and acknowl¬ 
edged and recorded in the county or city where the vendor resides within 
twenty days after the date of the mortgage. The mortgage may be fore¬ 
closed in accordance with the terms therein expressed. The mortgagee 
shall first execute a bond to the State to abide by and fulfill any decree made 
by any court of equity in regard to the property. He must give notice in 
accordance with the terms of the mortgage, or, if none are expressed in the 
mortgage, then twenty days’ notice of the time, and place, and terms thereof 
by advertisement in a paper printed in the county where the property is. 
The sale shall be reported to the court, and confirmed by it. 

MASSACHUSETTS.—Chattel mortgages need not be under seal nor 
acknowledged. They must be recorded within fifteen days after date on the 
records of the city or town where the mortgagor resides, and also in the city 
or town in which he principally transacts his business. If a non-resident, 
the mortgage must be recorded in the city or town where the property is. 
If it requires to be twice recorded, the second record will be good if made 
within ten days after the first. A record not made within the time specified 
is of no effect. The mortgagee or his assigns, after condition broken, may 
.give to the mortgagor written notice of his intention to foreclose the same, 
which notice shall be served by leaving a copy with the mortgagor, or person 
in possession of the property claiming the same, or by publishing it at least 
once a week, for three successive weeks, in one of the principal newspapers 
published in the town or city where the mortgage is properly recorded, or 
where the property is situated. The notice, with an affidavit of service, 
shall be recorded wherever the mortgage is recorded. Unless the mortgagor 
tenders payment of the amount due within sixty days after such record the 
right to redeem will be foreclosed. If the mortgage contain a power of sale, 
the property may be sold in accordance with its terms. 

MICHIGAN.— If not accompanied by delivery of the property mort¬ 
gaged, the mortgage, or a copy thereof, must be recorded in the office of the 
clerk of the city or town where the mortgagor resides, or, if he is a non-resi¬ 
dent, where the property is, and, within thirty days before the expiration of 
each year, the mortgagee must file an affidavit setting forth his interest in 
the property. There are no statute provisions in regard to foreclosure. 
Each mortgage should contain provisions as to its own foreclosure, which 
will be carried into effect. In the absence of such provisions, foreclosure 
will be by proceedings in chancery. A mortgage may be made to cover 
goods purchased to replace the stock originally mortgaged. 

MINNESOTA.— The mortgage must be made in good faith, and without 
intent to defraud creditors; it must be acknowledged, and it, or a copy, filed 
in the city or town where the property is, and also where the mortgagor 
resides. The record ceases to be notice in two years, unless, within thirty 
days of the expiration of that time, it is renewed by annexing to the copy of 
the mortgage on file an affidavit of the mortgagee setting forth his interest 
in the property and the amount then due. Such an affidavit must also be filed 


ABSTRACT OF CHATTEL MORTGAGES. 


659 

annually thereafter, in order to preserve the lien. The mortgagee or his 
assigns, after condition broken, may give written notice of his intention to fore¬ 
close, which may be served personally, or by publication once a week, for three 
successive weeks, in a newspaper printed and published in the county where 
the mortgage is recorded. The notice, with affidavit of service, shall be filed 
where the mortgage is filed, and foreclosure is complete, if no redemption is 
made within sixty days. When the mortgage contains a power of sale, it may 
be foreclosed in accordance with its terms, provided the sale be a public one, 
and ten days’ notice in writing be served upon the mortgagor, or person in 
possession of the property, if found within the town where the mortgage is 
filed. If not so found, the notice may be posted in three of the most public 
places in the town where the mortgage is filed, or that where the property is 
taken under the mortgage. 

MISSISSIPPI. — Mortgages of personal property must be acknowledged, 
and recorded in the office of the clerk of the court of chancery for the county 
where the property is, and are notice to third parties from the date of record. 
The mortgage should contain provisions as to foreclosure, sale, etc., and 
may be foreclosed in accordance with the terms expressed in the same. 

MISSOURI. — Unless the property is delivered, the mortgage must be 
acknowledged or proved, and recorded in the county where the mortgagor 
resides. Mortgages with power of sale may be foreclosed in accordance 
with such power, and such sale bars the right of redemption. All mortgages 
in which the debt, exclusive of interest, does not exceed one hundred dol¬ 
lars, may be foreclosed by sale of the property by the mortgagee, he first 
giving sixty days’ notice after default that the property will be sold, and 
thirty days’ notice of the time and place of sale. All other mortgages may 
be foreclosed by petition to the circuit court, and the court may give judg¬ 
ment and decree a sale of the incumbered property. 

MONTANA. — A chattel mortgage must be accompanied by an affidavit 
of the parties that it is made in good faith to secure the amount named 
therein, and without design to hinder or delay creditors, and must be 
acknowledged and recorded in the county where the mortgagor resides, or, 
if he be a non-resident, where the property is situated, and is good for one 
year from the date of record. Foreclosure is by suit, but the mortgage may 
contain a clause authorizing the sheriff to sell the property on default, in 
which case he may sell in the manner specified in the mortgage without fur¬ 
ther legal proceedings. 

NEBRASKA. — The property must be delivered, or else the mortgage, 
or a copy, filed in the office of the county clerk of the county where the 
mortgagor resides, or, if he be a non-resident, where the property is situated, 
and each year, within thirty days before the expiration thereof, the mort¬ 
gagee must file in the same office a copy of the mortgage, and an affidavit 
showing his interest in the same. A mortgage with power of sale may be 
foreclosed after condition broken by giving notice of the time and place of 
the sale at least twenty days before such sale. The notice shall specify the 


66o 


MORTGAGES OF PERSONAL PROPERTY. 


mortgage, parties, the amount due, and description of the property, and shall 
be published in some newspaper in the county where the property is, or, if 
no newspaper is published in said county, then by posting up notice in at 
least five public places in the county. The sale shall be by public auction. 
If the mortgage contains no power of sale, it may be foreclosed by action. 

NEVADA.— Chattel mortgages are allowed, but the property, except in 
the case of growing crops, must be delivered to the mortgagee. The mort¬ 
gage is foreclosed by action, with judgment for the amount due, and a decree 
of sale of the property and application of the proceeds to the payment of the 
debt. 

NEW HAMPSHIRE.— Possession must be delivered to and retained 
by the mortgagee, or the mortgage recorded with the clerk of the town 
where the mortgagor resides ; and both parties must make affidavit that the 
mortgage is made in good faith, and to secure an existing debt. The mort¬ 
gagee, at any time after thirty days from the time the condition is broken, 
may sell the mortgaged property at auction, notice of the time, place, and 
purposes of the sale being posted at two or more public places in the town 
in which the sale is to be, at least four days prior thereto. The mortgagee 
shall notify the mortgagor at least four days prior to the sale. He may pur¬ 
chase at such sale, and the mortgagor may redeem at any time before the 
sale. 

NEW JERSEY.— Unless accompanied by delivery of the property, the 
mortgage, or a copy thereof, together with an affidavit of the holder of the 
mortgage, stating the consideration, and, as nearly as possible, the amount 
due and to become due thereon, must be filed in the clerk’s office for 
the county where the mortgagor resides, or, if he is a non-resident, in 
the county where the property is. If there is a registry of deeds in the 
county, the mortgage must be filed in such registry. The mortgage vests 
the right of possession of the mortgaged property in the mortgagee so far as 
to enable him to prevent its removal from the county, and to recover the 
same if removed. Foreclosure is by proceeding in equity. 

NEW MEXICO.— A mortgage of personal property must be recorded 
in the office of the recorder of the county where the property is situated; 
and every year thereafter, within thirty days of the expiration thereof, the 
mortgagee must file with the mortgage an affidavit showing his interest in 
the mortgaged property, and the amount due thereon. After condition 
broken, the mortgagee may sell the property, or so much thereof as may be 
necessary, after posting notices in four public places in the township where 
the sale is to be made, ten days before the sale. 

NEW YORK.— The mortgage, or a true copy, must be filed in the office 
of the county clerk, registrar, or town clerk, as the case may be, where the 
mortgagor resides, or, if a non-resident, where the property is; and every 
year, within thirty days before the expiration of the same, the mortgagee 
must file a copy of the mortgage, and an affidavit showing his interest in the 
property. The mortgage need not be under seal. The mortgagee may take 
possession of the property after condition is broken, and sell the same either 


ABSTRACT OB' CHATTEL MORTGAGES. 


661 

at private sale or by public auction. Any sale fairly made will be upheld by 
the court. It is customary to give three days’ public notice if the sale is by 
auction, and the mortgagor may redeem at any time before sale, but not 
after. If the mortgage contain terms or provisions as'to foreclosure, sale, 
etc., the foreclosure will be governed by them. 

NORTH CAROLINA.— Mortgages are not valid unless recorded in the 
county where the mortgagor resides, or, if he is a non-resident, in the county 
where the property is. On breach of condition, if the mortgage contain a 
power of sale, the mortgagee may proceed to sell at auction, first giving 
twenty days’ notice in three public places; and he must return any surplus 
money to the mortgagor, or the foreclosure may be made by suit in court. 

OHIO.— If the property is not delivered, the mortgage is absolutely void, 
unless it is filed in the office of the clerk of the township where the mort¬ 
gagor resides, or where the property is, if he is a non-resident; and the 
mortgagee must file a statement of his claim in dollars and cents, and that it 
is unpaid; and a copy of the mortgage and affidavit must be filed within 
thirty days before the expiration of each year thereafter. There are no pro¬ 
visions in regard to foreclosure of chattel mortgages as distinguished from 
other mortgages. Any provisions or terms in the mortgage would be car¬ 
ried into effect. The mortgagor is entitled to possession and use of the 
property. 

OREGON.— The mortgage, or a copy thereof, must be recorded in the 
•office of the county clerk, and every year, within thirty days before the expi¬ 
ration of the same, a copy must be filed and a statement of the mortgagee’s 
interest. After condition broken, the mortgagee is entitled to possession, 
and he may recover the same by suit, on making an affidavit of all the facts 
and the value of the property; and the sheriff will hold the property to 
await the disposition of the suit. The mortgage may provide how it shall 
be foreclosed, in which case that method, and no other, shall be followed. 
In the absence of any other provision, foreclosure is by action. Where the 
consideration is less than five hundred dollars, the property may be sold by 
a sheriff or constable on the written request of the mortgagee. 

PENNSYLVANIA.— Leases of collieries, manufactories, and other 
premises, with the buildings and machinery, may be mortgaged, provided 
the mortgage is recorded in the same manner as deeds of real estate. With 
these exceptions, no mortgages of personal property are authorized by stat¬ 
utes now in force. Loans on personal security are mere pledges, and the 
lender must take possession of the property pledged. 

RHODE ISLAND.— Unless the property is delivered to and retained 
by the mortgagee, the mortgage must be recorded in the office of the clerk 
of the town where the mortgagor resides, or where the property is, if he be 
a non-resident. The mortgagee may take possession after condition broken. 
If there are any provisions in the instrument, the property may be sold in 
accordance therewith. Redemption at law may be had at any time within 
sixty days after breach, unless the property has been sold as above. The 
equity may be foreclosed by bill, in equity. 


662 


MORTGAGES OF PERSONAL PROPERTY. 


SOUTH CAROLINA. —The mortgage must be recorded within forty- 
days in the office of the register of mesne conveyances in the county where 
the mortgagor resides, or, if he be a non-resident, where the property is. 
The mortgagee may take possession of the property after breach of condi¬ 
tion, and sell the same, after posting notices in three public places in the 
county, one of which shall be the court-house door, or by publishing the 
same three times in some newspaper published in the county, unless the 
mortgagor consents in writing to sale in some other mode. When the prop¬ 
erty is delivered to the mortgagee, the equity of redemption is lost unless 
the property is redeemed within two years after breach. 

TENNESSEE. — Mortgages must be proved and registered in the county 
where the mortgagor resides. If the mortgage contains a power of sale, it 
may be foreclosed in accordance therewith; if not, it is foreclosed by bill in 
equity and decree therein. 

TEXAS. — A chattel mortgage must be filed in the office of the clerk of 
the county where the mortgagor resides, or, if a non resident, where the 
property is situated. It is foreclosed by suit, and the property is sold under 
decree of the court. If the property is removed from the county without 
the mortgagee’s consent, the latter is entitled to immediate possession and 
sale, whether the debt is due or not. 

UTAH. —A chattel mortgage must be accompanied by an affidavit of the 
parties that it is made in good faith, and not intended to hinder or delay 
creditors, and must be witnessed, acknowledged, and recorded in the county 
where the mortgagor resides. It is good for one year from date. If it con¬ 
tain a power sale, it may be foreclosed by sale of the property without legal 
proceedings, otherwise the foreclosure will be by suit. 

VERMONT. —Mortgages of personal property must be recorded in the 
office of the clerk of the town where the mortgagor resides, or, if he be a 
non-resident, where the property is situated, and must be accompanied by 
an affidavit, subscribed by the mortgagor and mortgagee, that the mortgage 
is made for the purpose of securing the debt specified in the condition 
thereof, and for no other purpose whatever, and that the same is a just debt, 
honestly due, and owing to the mortgagee. At any time after thirty days 
from the time of condition broken, the mortgagee may cause the property to 
be sold at public auction in the town where the mortgagor resides, or where 
the property is situated, provided notice of the time, place, and purpose of 
the sale has been posted in two or more public places in such town ten days 
previously, and ten days’ notice in writing given to the mortgagor. Any 
surplus is paid to the mortgagor, or applied on subsequent mortgages, if 
there be any such. 

VIRGINIA. — Chattel mortgages are executed, acknowledged, and 
recorded in the same manner as deeds of real estate (see Deeds). Chattel 
mortgages are usually given as deeds of trust, in which case they may be 
foreclosed by the trustee according to the terms of the mortgage, without 
the intervention of the courts. 


ABSTRACT OF CHATTEL MORTGAGES. 


663 

WASHINGTON TERRITORY.— A mortgage of personal property 
must be accompanied by the affidavit of both parties that it is made in good 
faith, and without design to hinder, delay, or defraud creditors, and must be 
acknowledged and recorded in the same manner as a deed of real estate, and 
is then good for six years from the time it becomes due. The mortgagee 
may take possession of the property on default, or previously if he has rea¬ 
sonable ground to believe that the security is endangered, and may have it 
sold by the sheriff. Notice of the time and place of sale and amount due 
must be served on the mortgagor, and like notice must be given of the sale 
as of sales on execution. If the right to foreclose or amount due is dis¬ 
puted, the proceedings may be transferred to the district court, or the fore¬ 
closure may be made by suit in court in the first instance. 

WEST VIRGINIA.— Chattel mortgages require the same formalities as 
deeds of real estate, must be executed under seal or scroll, acknowledged, 
or else proved by two witnesses, and recorded in the county where the prop¬ 
erty is. Chattel mortgages are seldom used, and are foreclosed in court of 
equity after decree. Deeds of trust usually take their place, and, after 
default, the trustee may sell the property, after due notice, without recourse 
to the courts. 

WISCONSIN.— The mortgage, or a copy, is to be filed in the office of 
the clerk of the town, city, or village where the mortgagor resides, or, if he 
is a non-resident, where the property is; and every two years, within thirty 
days before the expiration thereof the mortgagee must file an affidavit show¬ 
ing his interest in the mortgaged property. After condition broken, the 
property becomes the property of the mortgagee, and he may reduce it to 
possession. He may sell the same, and any surplus over the debt and costs 
must be returned to the mortgagor. Mortgages of marked logs must be 
recorded in the office of the lumber inspector of the district where the marks 
are recorded. 

WYOMING.— A chattel mortgage must be executed and acknowledged 
like conveyances of real estate, and recorded in the clerk’s office of the 
county where the property is situated. It is then valid for two months after 
the expiration of the term for which it was given, but may be renewed for 
another year by filing an affidavit setting forth the mortgagee’s interest in 
the mortgage, and may be further renewed annually in the same manner. It 
is foreclosed by sale at public auction, after twenty days’ advertisement of 
the time and place of such sale. 


664 


THE LAW OF PA TENTS. 


CHAPTER XXXIII. 
THE LAW OF PATENTS. 


WHAT MAY BE PATENTED. 

Section 4,886 of the Revised Statutes of the United States 
provides that “any person who has invented or discovered any 
new and useful art, machine, manufacture, or composition of 
matter, or any new and useful improvement thereof, not known 
or used by others in this country, and not patented or described 
in any printed publication in this or any foreign country, before 
his invention or discovery thereof, and not in public use or on 
sale for more than two years prior to his application, unless the 
same is proved to have been abandoned, may, upon payment of 
the fees required by law, and other due proceedings had, obtain 
a patent therefor.” 

In case of the death of the inventor, his legal representa¬ 
tives will be entitled to apply for and receive the patent. 

Joint inventors are entitled to a joint ^patent, but neither 
can claim one separately. 

An alien may obtain a patent on the same terms as a citizen. 

Merely conceiving the idea of a machine or improvement is 
not such an “ invention ” or “ discovery ” as will prevent a sub¬ 
sequent inventor from obtaining a patent. 

In order to have this effect, the alleged prior invention must 
have been reduced to a practical form, capable of actual use; 
and, in most cases, actual use itself is also held to be necessary. 

Nor will the fact of prior use or invention abroad prevent 
the issue of the patent, unless the invention has been patented 
or described in some printed publication. 

As between two rival inventors, however, the rule is that he 
who first conceives the idea of an invention, and uses reasona¬ 
ble diligence in reducing it to practice, is the prior inventor as 
against one whose conception of the idea was later, though he 
was the first to reduce the invention to practice. In such a 
case, drawings, models, or even oral descriptions may be used 
for the purpose of proving the date of the conception of the 
invention. 



THE LA W OF PA TENTS. 


665 

Patents are now granted for the term of seventeen years, 
and confer on the patentee, his legal representatives and 
assigns, the exclusive right to make, use, and yend the inven¬ 
tion throughout the United States during that time. 

It is of the utmost importance that the description of the 
invention in every patent should be clear and accurate, and that 
the claim should cover neither more nor less than the actual 
invention. 

This is now the more important, as the right to surrender 
and re-issue a patent on account of defects in these respects, 
has recently been greatly limited by the courts. 

We therefore earnestly advise every inventor to employ 
some skillful and experienced solicitor to procure his patent for 
him whenever it is possible for him to do so. 

As it sometimes happens, however, that this cannot be done, 
we insert the following general instructions for procuring 
patents and .attending to other business in the patent-office. 

Mode of Proceeding to Obtain a Patent. 

APPLICATION. 

All applications must be completed for examination within 
two years after the filing of the petition ; and, in default, all 
such will be regarded as abandoned, unless it be satisfactorily 
proved to the office that such delay was unavoidable. The 
application must be made by the actual inventor, if alive, even 
if the patent is to issue to an assignee; but, where the inventor 
is dead, the application and oath may be made by the executor 
or administrator. The application must be in writing, in the 
English language, signed by the applicant, and addressed to the 
Commissioner of Patents, Washington, D. C. The following is 
a suitable form, which may serve as a useful guide, but must be 
varied according to circumstances : 

( 244 .) 

Form of Petition. 

To the Commissioner of Patents: 

Your petitioner, A. B., a citizen of the United States, residing at S., in 
the County of M. and State of N. [or a subject of, etc.], prays that letters 
patent be granted to him for the improvement in , set forth 

in the annexed specification. A. B. 


666 


THE LA W OF PA TENTS. 


SPECIFICATION. 

The specification is a written description of the invention 
or discovery and of the manner and process of making, con¬ 
structing, compounding, and using the same, and is required to 
be in such full, clear, concise, and exact terms as to enable any 
person skilled in the art to which it appertains, or with which 
it is most nearly connected, to make, construct, compound, and 
use the same. It must conclude with a specific and distinct 
claim or claims of the part, improvement, or combination which 
the applicant regards as his invention or discovery. 

In all applications for mere improvements, the specification 
must distinguish between what is admitted to be old and what 
is described and claimed to be the improvement, so that the 
office and the public may understand exactly for what the 
patent is granted. 

Two or more distinct and separate inventions may not be 
claimed in one application; but where several inventions have 
a necessary and dependent connection with each other, so that 
all cooperate in attaining the end which is sought, they may be 
so claimed. If more than one invention is claimed in a single 
application, and they are found to be such that a single patent 
may not be issued to cover the whole, the inventor must divide 
the application into separate applications, or confine the claim 
to whichever invention he may elect. 

The specification must be signed by the inventor (or by his 
executor or administrator, if the inventor be dead), and attested 
by two witnesses. It should describe the sections of the draw¬ 
ings (where there are drawings), and refer by letters and figures 
to the different parts. 

The rules of the Patent Office recommend that the following 
order of arrangement should be observed, when convenient, in 
framing the specification; 

(1) Preamble giving the name and residence of the applicant, 
the title of the invention, and if the invention has been patented 
in any country, a statement of the country or countries in which 
it has been patented, and the dates and numbers of such 
patents. 

(2) General statement of the object and nature of the 
invention; 


THE LA W OF PA TENTS. 66/ 

(3) Brief description of the drawings, if any, showing what 
each view represents; 

(4) Detailed description, explaining fully the alleged inven¬ 
tion, and the manner of constructing, practicing, operating, 
and using it; 

(5) Claim or claims ; 

(6) Signature of inventor; 

(7) Signatures of two witnesses. 

The specification and claims and all amendments must be 
written in a fair, legible hand, on but one side of the paper; 
otherwise the office may require them to be printed; and all 
interlineations and erasures must be clearly marked in marginal 
or foot notes written on the same sheet of paper. Legal cap 
paper with the lines numbered is deemed preferable and a wide 
margin must always be reserved on the left hand side of the 
page. 

( 245 .) 

Form of a Specification to Accompany a Petition. 

To ALL WHOM IT MAY CONCERN: 

Be it known that I, of in the county of 

and State of have invented a new and useful means for prevent¬ 

ing steam boilers from bursting (for which I have received letters patent in 
England, dated July 6, 1878, No. 750), and I do hereby declare that the 
following is a full, clear, and exact description of the same: 

The nature of my invention consists in providing the upper part of a 
steam boiler with an aperture in addition to that for the safety-valve, which 
aperture is to be closed by a plug or disk of alloy, which will fuse at any 
given degree of heat, and permit the steam to escape, should the safety-valve 
fail to perform its functions. 

In the accompanying drawings Fig. 1 is a longitudinal section of a boiler 
embodying my invention, and Fig. 2 is a perspective view of the same. 

To enable others skilled in the art to make use of my invention, I will 
proceed to describe its construction and operation. I construct my steam 
boiler in any of the known forms, and apply thereto gauge-cocks, a safety- 
valve, and the other appendages of such boilers; but in order to obviate 
the danger arising from the adhesion of the safety-valve, and from other 
causes, I make a second opening in the top of the boiler, similar to that 
made for the safety-valve, as shown at A, in the accompanying drawing; 
and in this opening I insert a plug or disk of fusible alloy, securing it in its 
place by a metal ring and screws, or otherwise. In general, I compose this 
fusible metal of a mixture of lead, tin, and bismuth, in such proportions as 
will insure its melting at a given temperature, which must be that to which 


668 


THE LA W OF PA TENTS. 


it is intended to limit the steam; it will, of course, vary with the pressure 
the boiler is intended to sustain. 

I surround the opening containing the fusible alloy by a tube, B, intended 
to conduct off any steam which may be discharged therefrom. When the 
temperature of the steam in such a boiler rises to its assigned limit the fusi¬ 
ble alloy will melt and allow the steam to escape freely, thereby securing it 
from all danger of explosion. 

What I claim as my invention, and desire to secure by letters patent, is 
the application to steam boilers of a fusible alloy which will melt at a given 
temperature and allow the steam to escape, substantially as herein described. 

{Signature.) 

{Witnesses.) 

When the application is for a machine, the specification 
should be modified accordingly. 

The applicant must make oath or affirmation substantially as 
follows, which is to be annexed to the specification : 

( 246 .) 

Form of Oath. 

State of > 

County of | ss: 

the above-named petitioner, a citizen of and resident of 

in the county of and State of , being duly sworn 

(or affirmed) deposes and says that he verily believes himself to be the origi¬ 
nal, first, and sole inventor of the improvement in described and 

claimed in the foregoing specification; that the same has not been patented 
to him or to others with his knowledge or consent in any country; that the 
same has not, to his knowledge, been in public use or on sale in the United 
States for more than two years prior to this application, and he does not 
know and does not believe that the same was ever known or used prior to 
his invention'thereof. 

{Inventor's full name.) 

Sworn to and described before me this day of 188 . 

{Signature of magistrate?) 

{Official character .) 

If the applicants be joint inventors the form of the oath will 
be changed accordingly, and the word joint used instead of sole. 

If the invention has been previously patented, the words “ in 
any country ” should be erased and the words “ except in the 
following countries ” substituted, and the names of the countries 
and the date and number of each patent inserted. 

If the inventor be dead the oath will be made by the exec¬ 
utor or administrator who will declare his belief that the party 
named as inventor was the original and first inventor. 


THE LA IV OF PA TENTS. 


669 

Citizens of the British Provinces should state specifically ' 
the provinces of which they are citizens, and not merely that 
they are subjects of the crown of Great Britain. The oath 
may be taken before any person authorized by law to administer 
oaths, but a notary public or U. S. Commissioner is preferable. 
The oath may be taken in a foreign country before any min¬ 
ister plenipotentiary, charg6 d’affaires, consul, or commercial 
agent, holding commission under the government of the United 
States, or before any notary public of the country in which the 
oath is taken, being attested in all cases by the proper official 
seal of such notary. 

DRAWINGS. 

The applicant for a patent is required by law to furnish 
drawings of his invention when the nature of the case admits 
of them. 

The drawings must be signed by the inventor or by his 
attorney in fact, and attested by two witnesses, and must show 
every feature of the invention covered by the claims. 

Different views of the whole invention and of its parts may 
be given in perspective, longitudinal, or cross section, etc., so 
as clearly to show their construction and mode of operation. 
If one sheet is insufficient for this purpose, others may be 
added, the several sheets being distinguished and referred to 
by numbers. Each part must be distinguished by the same 
letter or number, wherever it appears in the several drawings. 

The rules of the Patent Office require that all drawings be 
made upon pure white paper of a thickness corresponding to 
“three sheet Bristol board,” and that they shall be made with 
the pen, and that India ink only must be used. The size of a 
sheet on which a drawing is made must be exactly 10 by 15 
inches. One inch from its edge a single marginal line is to be 
drawn, leaving the “right” precisely 8 by 13 inches. 

Within this margin all work and signatures must be 
included. One of the shorter sides is regarded as the top, 
and measuring downward from the marginal line a space of not 
less than ij inch is to be left blank for the heading of title, 
name, number, and date. 

The signature of the inventor is to be placed at the lower 


THE LA IV OF PA TENTS. 


670 

right hand corner of the sheet, and the signatures of the wit¬ 
nesses at the lower left hand corner, all within the marginal 
line. The title is to be written in pencil on the back of the 
sheet. The permanent names and title will be supplied by 
the office. 

Drawings should be rolled for transmission to the office, — 
not folded. 

MODEL. 

A model is no longer required, unless the examiner to whom 
the case is referred deems it necessary, and of this the applicant 
will be duly notified. 

It must be neatly and substantially made, and of durable 
material, metal being preferred, and must not exceed one foot 
in length, breadth, or height. If made of wood, it must be 
painted or varnished, and the parts must be securely fastened 
without glue. 

Whenever practicable, the name of the inventor should be 
permanently affixed. 

When the invention or discovery consists of a composition 
of matter, the commissioners may require the applicant to 
furnish a specimen of the composition and of its ingredients 
sufficient in quantity for the purpose of experiment. 

In all cases where the article is not perishable, a specimen 
of the composition claimed, put up in proper form to be pre¬ 
served by the office, must be furnished. 

COMPLETION OF THE APPLICATION. 

No application is examined, nor is the case placed upon the 
files for examination, until the preliminary fee is paid, and 
the specification, with the petition, oath, and drawings (when 
required), filed. It is desirable that everything necessary to 
make the application complete should be deposited in the office 
at the same time. 

OF THE EXAMINATION. 

All cases in the Patent Office are arranged in classes, which 
are taken up for examination in regular rotation ; those in the 
same class being examined and disposed of, as far as practicable, 
in the order in which the respective applications are completed. 


THE LA W OF PA TENTS. 


6/1 

When, however, the invention is deemed of peculiar importance 
to some branch of the public service, and when, for that rea¬ 
son, the head of some department of the government specially 
requests immediate action, the case will be taken up out of its 
order. These, with applications for re-issue, and for inventions 
for which a foreign patent has been issued, are the only excep¬ 
tions to the rule above stated in relation to the order of 
examination. 

REJECTIONS. 

Whenever, on examination, any claim of an application is 
rejected for any reason whatever, the applicant will be notified 
thereof, and the reason for such rejection will be fully and pre¬ 
cisely stated, and such information and references given as may 
be useful in judging of the propriety of prosecuting the appli¬ 
cation or of altering the specification or claims; and if, after 
receiving such notice, the applicant shall persist in his claim, 
with or without altering his specification, the case will be 
re-examined. If, on re-examination, it shall be again rejected, 
the reasons therefor will be fully and precisely stated. 

AMENDMENTS. 

The applicant has a right to amend his specification or 
claims before or after the first rejection; and he may amend as 
often as the examiner presents any new references or reasons 
for rejection. In so amending the applicant must clearly point 
out all of the patentable novelty which he thinks the case pre¬ 
sents, in view of the state of the art disclosed by the references 
cited or objections made. 

He must also show how the amendments avoid such 
references or objections. 

No alterations or amendments, except of clerical errors, will 
be allowed after an appeal to the examiner-in-chief, or after the 
patent has been ordered to issue, unless the same are approved 
by the examiner in charge. 

All amendments of the model, drawings or specifications, 
must conform to at least one of them as they were at the time 
of the filing of the application; and all amendments of specifi¬ 
cations or claims must be made on separate sheets of paper 
from the original, and must be filed in the manner above 


THE LA W OF PA TENTS. 


672 

directed. Even when the amendment consists in striking out 
a portion of the specification, or other paper, the same course 
should be observed. No erasures must be made. The papers 
must remain forever just as they were when filed, so that a true 
history of all that has been done in the case may be gathered 
from them. 

The following are forms proper to be observed in such cases: 

Form of Amendment of Specification. 

To the Commissioner of Patents. 

In the matter of my application for letters patent for an improvement in 
, filed , serial number 

“ I hereby amend my specification by inserting the following words after 
the word , in the line of the page thereof” (here should 

follow the words that are to be inserted); or, “ I hereby amend my specifi¬ 
cation by striking out the line of the page thereof;” or, “by 

striking out the first and fourth clauses of the claim appended thereto ” ; (or 
whatever may be the amendment desired by the applicant.) 

Signed at , in the county of , and 

State of , 188 . 

( Signature .) 

In each case the exact word to be stricken out or inserted 
should be clearly described, and the precise point indicated 
where any insertion is to be made. When more than one 
alteration is made, a separate paragraph should be devoted to 
each. 

WITHDRAWALS. 

Although an application be rejected, no money paid thereon, 
nor for a design, nor for a re-issue, can be withdrawn from the 
Patent Office by the applicant. 

APPEALS. 

After an application for a patent has been twice rejected by 
the examiner having it in charge, it may, at the option of the 
applicant, be brought before the board of examiners-in-chief, on 
payment of a fee of ten dollars. 

For this purpose, a petition in writing must be filed, signed 
by the party or his authorized agent or attorney, setting forth 
the points of the decision upon which the appeal is taken. 


THE LA W OF PA TENTS. 


673 


( 247 .) 

Form of Appeal to the Examiner-in-Chief. 

To the Commissioner of Patents. 

Sir, — I hereby appeal to the examiners-in-chief from the decision of 
the principal examiner in the matter of my application for a patent for an 
improvement in (here state the subject of the invention) filed , 

rejected a second time on day of . The following are the 

points of' the decision on which the appeal is taken. 

Respectfully, 

(Place and date of signing .) (. Signature .) 

The appeal must be submitted to the primary examiner, 
who will, if he finds it regular in form, furnish the examiners- 
in-chief with a written statement of the grounds of his decis¬ 
ion, with copies of the rejected claims and the references 
applicable thereto. The appellant must, before the day of 
hearing, file a brief of the authorities and arguments on which 
he relies to sustain his appeal. If he desires to be heard orally 
he must so indicate when he files his appeal. 

The examiners-in-chief will consider the case as it was when 
last passed upon by the primary examiner, merely revising his 
decisions so far as they were adverse to the applicant. 

All cases which have been acted on by the board of examiners* 
in-chief may be brought before the commissioner in person, 
upon a written request to that effect, and upon the payment of 
the fee of twenty dollars required by law. A decision deliber¬ 
ately made and approved by one commissioner will not be 
disturbed by his successor. The only remaining remedy will 
be by appeal in those cases allowed by law to the judges of the 
Supreme Court of the District of Columbia. 

The mode of appeal from the decision of the office to the 
judges of the Supreme Court of the District of Columbia is by 
giving written notice -thereof to the commissioner, filing in the 
Patent Office, within thirty days after notice of the decision, 
reasons of appeal, and paying to him the sum of twenty-five 
dollars. Printed forms of notice of appeal, of the reasons of 
appeal, of the petition, and also the rules of practice of the 
Supreme Court of the District of Columbia respecting appeals, 
will be forwarded from the Patent Office to any one wishing to 
make an appeal, on his request. 

43 


674 


THE LAW OF PATENTS. 


INTERFERENCES. 

When each of two or more persons claims to be the first 
inventor of the same thing, an “interference” is declared 
between them, and a trial is had before an officer called the 
examiner of interferences. Nor does the fact that one of the 
parties has already obtained a patent prevent such an interfer¬ 
ence ; for, although the commissioner has no power to cancel a 
patent already issued, he may, if he finds that another person 
was the prior inventor, give him also a patent, and thus place 
them on an equal footing before the courts and the public. If 
an applicant for a re-issue embraces in his amended specifica¬ 
tion any new or additional description of his invention, or 
enlarges his claim, or makes a new one, and thereby includes 
therein anything which has been claimed in any patent granted 
subsequent to the date of his original application, as the inven¬ 
tion of another person, an interference will be declared between 
the application and any unexpired patent, or pending applica¬ 
tion, in which the same thing is claimed; but not where such 
pending application for re-issue claims only what was granted 
in the original patent. 

When an application is found to conflict with a caveat, the 
caveator is allowed a period of three months within which to 
present an application, when an interference may be declared. 
In cases of interference, patentees have the same remedies by 
appeal as applicants in pending applications. 

Each party to the interference will be required to file a con¬ 
cise statement under oath showing the date of his original con¬ 
ception of the invention, of its illustration by drawing or model, 
of its disclosure to others, of its completion, and of the extent 
of its use. 

The parties will be strictly held in their proof to the dates 
set up in their statements. These statements must be sent 
under seal, and the name of the party, title of the case, and 
nature of the invention endorsed on the envelope. 

Neither party is allowed to see the statement of the other 
until both have been filed. 

An applicant involved in an interference may, before the 
date fixed for filing his statement, disclaim over his own sig¬ 
nature attested by two witnesses, the invention of the particular 


THE LA IV OF PA TENTS. 


675 

matter in issue, and upon such disclaimer and the cancellation 
of any claims involving such interfering matter, judgment shall 
be rendered against him and the disclaimer shall be embodied in 
and form part of his specification. 

In cases of interference, the party who first made oath to 
the invention will be deemed the first inventor in the absence 
of all proof to the contrary. A time will be assigned in which 
the other party shall complete his direct testimony, and a 
further time in which the adverse party shall complete the 
testimony on his side; and a still further time in which the first 
party shall close his rebutting testimony, but shall take no 
other. If there are more than two parties, the times for taking 
testimony shall be so arranged that each shall have a like oppor¬ 
tunity in his turn, each being held to go forward and prove his 
case against those who made oath to their applications before 
him. If either party wishes the time for taking his testimony, 
or for the hearing, postponed, he must make application for 
such postponement, and must show sufficient reason for it by 
affidavit filed before the time previously appointed has elapsed, 
if practicable ; and must also furnish his opponent with copies 
of his affidavits, and with seasonable notice of the time of 
hearing his application. 

In contested cases, whether of interference or of extension, 
parties may have access to the testimony on file, prior to the 
hearing, in presence of the officer in charge ; or when practica¬ 
ble, copies may be obtained by them at the usual charges. 

RE-ISSUES. 

A re-issue is granted to the original patentee, his heirs, or 
the assignees of the entire interest, when, by reason of an 
insufficient or defective specification, the original patent is 
inoperative or invalid, provided the error has arisen from inad¬ 
vertence, accident, or mistake, without any fraudulent or decep¬ 
tive intention. 

Unless applied for immediately after the issue of the original 
patent, a re-issue will not be allowed for the purpose of expand¬ 
ing or enlarging the claims of the original, even though the 
invention, as thus claimed, was described or shown in the origi- 


THE LA IV OF PA TENTS. 


6/6 

nal specification and drawings, and might properly have been 
embraced in the original patent. Two years has been indicated 
as the extreme limit within which re-issues for this purpose 
will be allowed. 

The courts have recently construed re-issued patents very 
strictly in this respect, and it is therefore very important that 
the inventor should carefully examine his patent as soon as pos¬ 
sible after its issue to ascertain that it embraces everything to 
which he is justly entitled. 

Re-issued patents expire at the same time that the original 
patent would have done. For this reason, applications for 
re-issue will be acted upon immediately after they are com¬ 
pleted. 

A patentee may, at his option, have in his re-issue a sepa¬ 
rate patent for each distinct part of the invention comprehended 
in his original application, by paying the required fee in each 
case, and complying with the other requirements of the law, as 
in original applications. Each division of a re-issue constitutes 
the subject of a separate specification descriptive of the part or 
parts of the invention claimed in such division ; and the draw¬ 
ing may represent only such part or parts. One or more 
divisions of a re-issue may be granted, though other divisions 
shall have been postponed or rejected. In all cases of applica¬ 
tions for re-issues, the original claim is subject to re-examina¬ 
tion, and may be revised and restricted in the same manner as 
in original applications. 

The petition for re-issue must be signed and sworn to by 
the inventor if he be living, and must be accompanied with a 
certified copy of the abstract of title, giving the names of all 
assignees owning any undivided interest in the patent; and 
with the written assent of such assignees. 

The applicant must also file with his petition a statement set¬ 
ting forth particularly the defects or insufficiencies in the speci¬ 
fication which render the patent inoperative or invalid, and how 
such errors arose, and in cases where more was claimed and 
allowed than he was entitled to claim as new, such part or parts 
must be distinctly pointed out. At the same time the original 
patent must be surrendered, or if that be lost an affidavit to 


THE LA W OF PA TENTS . 


677 

that effect and a certified copy of the patent. New drawings 
must also be furnished as in the case of an original application. 

(248a.) 

Form of Petition for Re-issue. 

To the Commissioner of Patents: 

Your petitioner, A. B., a citizen of the United States residing at L., in 
the County of M. and State of N. (or subject of, etc.), prays that he may be 
allowed to surrender the letters patent for an improvement in , 

granted to him , 188 , whereof he is now sole owner (or whereof 

C. D., on whose behalf and with whose assent this application is made, is 
now sole owner by assignment), and that letters patent may be issued to him 
(or the said C. D.) for the same invention upon the annexed amended speci¬ 
fication. With this petition is filed an abstract of title, duly certified, as 
required in such cases. A. B. 


Assent of Assignee to Re-issue. 

The undersigned, of the entire (or undivided) interest in the above-men¬ 
tioned letters patent, hereby assents to the accompanying application. 

C. D. 


(249.) 

Form of Oath to be Appended to Applications for 

Re-issue. 

State of 
County of 

A. B., the above-named petitioner, being duly sworn, deposes and says 
that he verily believes that his aforesaid letters patent are inoperative (or 
invalid or both) by reason of a defective (or insufficient) specification (or 
both, or by reason of the patentee claiming as his own invention or discov¬ 
ery more than he had a right to claim as new) and that the error arose by 
inadvertence (accident or mistake) without any fraudulent or deceptive 
intent; that he is the sole owner of said letters patent (or that E. F. is the 
sole owner of said letters patent, and that this application is made on the 
behalf and with the consent of the said E. F.) and that he verily believes 
himself to be the first and original inventor of the improvement set forth 
and claimed in this amended specification, and does not believe that the same 
was ever before known or used. A. B. 

Sworn to and subscribed before me this day of 188 . 

C. D. 

{Title of office.) 



678 


THE LA W OF PA TENTS. 


Applications for re-issues will not be kept secret; and in¬ 
formation respecting the same will be furnished upon inquiry, 
as well as copies of the proposed claims for publication. 

DISCLAIMERS. 

Where, by inadvertence, accident, or mistake, the original 
patent is too broad, a disclaimer may be filed either by the 
original patentee or by any assignee of the patent or of any 
sectional interest therein. 

The following is a sufficient form for a disclaimer: 

( 250 .) 

Form for a Disclaimer. 

To the Commissioner of Patents: 

Your petitioner, A. B., a citizen of the United States, residing at L. in 
the County of M. and State of N. (or a subject of &c.) represents that in the 
matter of a certain improvement in , for which letters patent of 

the United States, No. , were granted to him (or to C. D.) on the 
day of he is (here state the exact interest of the disclaimant; if 

assignee , set out book and page where assignment is recorded) and that he 
has reason to believe that through inadvertence (accident or mistake) the 
specification and claim of said letters patent are too broad, including that of 
which said patentee was not the first inventor. 

Your petitioner therefore, hereby enters his disclaimer to that part of the 
claim in said specification which is in the following words, to wit: 

Witness: A. B. 

E. F. 


EXTENSIONS. 

No patents now in force can be extended except by a special 
act of Congress. 

Such extensions are rarely granted, and therefore the rules 
of the office in reference to them are of too limited application 
to be inserted here. 


DESIGNS. 

Patents for Designs are provided for by section 4929 of 
the Revised Statutes of the United States, as follows : 

“Any person, who by his own industry, genius, efforts, and 
expense, has invented or produced any new and original design 
for a manufacture, bust, statue, alto-relievo, or bas-relief; any 


THE LA W OF PA TENTS. 


679 

new and original design for the printing of woolen, silk, cotton, 
or other fabrics; any new and original impression, ornament, 
pattern, print, or picture, to be printed, painted, cast, or other¬ 
wise placed on or worked into any article of manufacture; or 
any new, useful, and original shape or configuration of any 
article of manufacture, the same not having been known or 
used by others before his invention or production thereof, or 
patented or described in any printed publication, may upon 
payment of the fee prescribed by law, and other due proceed¬ 
ings had the same as in cases of inventions or discoveries, 
obtain a patent therefor.” 

Patents for designs may be granted for the term of three 
years and six months, or for seven years, or for fourteen years, 
as the applicant may in his application elect. 

A fee of ten dollars is to be paid in every case on filing the 
application. 

A further fee of five dollars is payable when the patent is 
issued in the case of patents for seven years, and one of twenty 
dollars on patents for thirty years. 

In all other cases in which fees are required the same rates 
are charged as in the case of patents for inventions or discov¬ 
eries. 

The proceedings on applications for patents for designs are 
substantially the same as in those for inventions or discoveries. 

The specification must distinctly point out the characteristic 
features of the design and carefully distinguish between what 
is old and what is claimed to be new. 

When the design can be sufficiently represented by draw¬ 
ings or photographs, no model will be required. 

When a photograph or engraving is employed for this pur¬ 
pose, it must be mounted on bristol board 10 by 15 inches in 
size, and properly signed and witnessed. 

The applicant will be required to furnish ten extra copies 
of such photograph or engraving (not mounted) of a size not 
exceeding yi inches by 11. 

Whenever the design is represented by a drawing made to 
conform to the rules laid down for drawings of mechanical 
inventions, but one copy need be furnished. 


68 o 


THE LA W OF PA TENTS. 


( 251 .) 

Form of Application for Patents for Designs. 

To the Commissioner of Patents: 

Your petitioner, A. B., a citizen of the United States, residing at L., in 
the County of M. and State of N. (or subject, etc.), prays that letters patent 
may be granted to him for the term of years for the new and 

original design for , set forth in the annexed specification. 

A. B. 


( 252 .) 

Form of Specification for Designs. 

TO ALL WHOM IT MAY CONCERN: 

Be it known the. : I, A. B., a citizen of the United States, residing at L., in 
the County of M. and State of N., have invented and produced a new and 
original design for watch cases or lockets, of which the following is a speci¬ 
fication, reference being had to the accompanying drawings forming part 
thereof. 

Figure I is a sectional view of my newly designed case, Fig. 2 a side 
elevation of the same, and Fig. 3 an edge view, these three views being 
deemed necessary to fully illustrate my design. 

Heretofore watch cases and lockets have been made which presented when 
viewed in elevation as in Fig. 2, a scalloped outline or periphery, some being 
made to imitate shells. In these the scallops extend entirely across from lid 
to lid, and in a watch case the center which holds the movements is also 
scalloped to correspond. 

The leading feature of my design consists in a raised or “ struck up ” scal¬ 
loped surface, the outlines of which, when viewed in elevation, as in Fig. 2, 
will fall entirely within the circular outline or circumference of the center. 

A is the center of the case, which is circular in its general contour, and 
B B are the lids. These are also circular in their outer contour where they 
join the center, but have scallops, C C C, formed upon them substantially 
as represented in the several figures. The indented outline of the scalloped 
surface falls within the outer contour line of the cas£, thus presenting to the 
eye the combined effect of a smooth circular outline or center and an 
indented or scalloped outline within it. 

I claim — 

The design for a watch case or locket herein shown and described, the 
same consisting of the raised scallops, C C C, on the lid, forming an 
indented outline wholly within the circular outline of the edge of the lid and 
the center A. A. B. 

Witnesses: 

C. D. 

E. F. 


THE LA W OF PA TENTS . 


681 

The form of oath to accompany the petition is substantially 
the same as that used in cases of patents for inventions. 

FOREIGN PATENTS. 

The taking out of a patent in a foreign country does not 
prejudice a patent previously obtained here; nor does it pre¬ 
vent obtaining a patent here subsequently, if the invention has 
not been in public use in the United States for more than two 
years. When application is made for a patent for an invention 
which has been already patented abroad, the inventor will be 
required to make oath, that, according to the best of his knowl¬ 
edge and belief, the same has not been introduced into public 
and common use in the United States for more than two years 
prior to the application. An applicant who has obtained a for¬ 
eign patent or patents, should state in what country or countries 
such patents have been obtained, and the dates and numbers 
thereof. The reason of this is, that the statute provides that 
the patent granted in this country shall expire with the foreign 
patent, or, if there be more than one, at the same time with 
that having the shortest unexpired term; and in no case can it 
be in force more than seventeen years. 

CAVEATS. 

Any citizen of the United States, or alien who has resided 
for one year last past in the United States, and has made oath 
of his intention to become a citizen thereof, can file a caveat in 
the secret archives of the patent office on the payment of a fee 
of ten dollars therefor. And if, at any time within one year 
thereafter, another person applies for a patent for the same 
invention, the caveator will be entitled to notice to file his appli¬ 
cation, and to go into interference with the applicant for the 
purpose of proving priority of invention, and obtaining the 
patent if he succeed. He must file his application within three 
months from the day on which the notice to him is depos¬ 
ited in the post-office at Washington, adding the regular time 
for the transmission of the same to himand the day when the 
time for filing expires shall be mentioned in the notice or 
indorsed thereon. The caveator will not be entitled to notice of 
any application pending at the time of filing his caveat, nor of 


682 


THE LA IV OF PA TENTS. 


any application filed after the expiration of one year from the 
date of filing the caveat; but he may renew his caveat at the 
end of one year by paying a second caveat fee of ten dollars, 
which will continue it in force for one year longer, and so on from 
year to year as long as the caveator may desire. 

No caveat can be filed in the secret archives of the office 
unless accompanied by an oath of the caveator that he is a cit¬ 
izen of the United States, or that he is an alien and has resided 
for one year last past within the United States, and has made 
oath of his intention to become a citizen thereof ; nor unless the 
applicant also states under oath that he believes himself the 
original inventor of the art, machine, or improvement set forth 
in his caveat. 

A caveat need not contain as particular a description of the 
invention as is requisite in a specification ; but still the descrip¬ 
tion should be sufficiently precise to enable the office to judge 
whether there is a probable interference when a subsequent 
application is filed. 

Caveat papers cannot be withdrawn from the office nor under¬ 
go alteration after they have once been filed; but additional 
papers relative to the invention may be appended to the caveat 
(their date being noted), provided they are merely amendatory 
of the original caveat. In the case of filing papers supplement¬ 
ary to an original caveat, the right to notice in regard to the sub¬ 
ject of those papers expires with the caveat; and any additional 
papers not relating to the invention first caveated will receive 
no notice. The caveator, or any person properly authorized by 
him, can at any time obtain copies of the caveat papers at the 
usual rates. 

The caveat should be accompanied by drawings or sketches, 
which must be made on tracing muslin or paper which can be 
folded. 

The following is a proper form of a caveat: 

( 254 .) 

Form of a Caveat. 

To the Commissioner of Patents: 

Be it known that I, A. B., a citizen of the United States, residing at 
, having invented an improvement in and desiring 


THE LA W OF PA TENTS. 683 

further to mature the same, file this my caveat therefor and pray protection 
of my right until I shall have matured my invention. 

The following is a description of my newly invented , , which 

is as full, clear, and exact as I am able at this time to give, reference being 
had to the drawing hereto annexed. ( Here insert a description of the inven¬ 
tion, pointing out its objects a?id distinguishing characteristics .) 

A. B. 

Witnesses, 

C. D., 

E. F. 

The oath of the caveator accompanying the caveat must set 
forth that he is a citizen of the United States, or, if he be an alien, 
that he has resided for one year last past within the United 
States, and has made oath of his intention to become a citizen 
thereof, and that he believes himself the original and first 
inventor of the art, machine, or improvement, set forth in his 
caveat. 

ASSIGNMENTS AND GRANTS. 

A patent may be assigned, either as to the whole interest or 
any undivided part thereof, by any instrument of writing. No 
particular form of words is necessary to constitute a valid assign¬ 
ment ; nor need the instrument be sealed, witnessed, or acknowl¬ 
edged. A patent will, upon request, issue directly to the 
assignee or assignees, of the entire interest in any invention, 
or to the inventor and the assignee jointly, when an undivided 
part only of the entire interest has been conveyed. In every 
case where a patent issues or re-issues to an assignee, the 
assignment must be recorded at the Patent Office at least five 
days before the issue of the patent; and the specification must 
be sworn to by the inventor. Every assignment and every 
grant of an exclusive territorial right must be recorded in the 
Patent Office within three months from the execution thereof; 
otherwise it will be void as against any subsequent purchaser or 
mortgagee for a valuable consideration without notice; but, if 
recorded after that time, it will protect the assignee, or grantee, 
against any such subsequent purchaser whose assignment or 
grant is not then on record. 

The receipt of assignments is not generally acknowledged 
by the office. They will be recorded in their turn within a few 


THE LA IV OF PA TENTS. 


684 

days after their reception, and then transmitted to persons enti¬ 
tled to them. 


(255.) 

Form of Assignment of the Entire Interest in Letters 
Patent before obtaining the same, and to be 
Recorded preparatory thereto. 

Whereas I, of in the County of 

and State of have invented certain new and useful improvements 

in ploughs, for which I am about to make application for letters patent of the 
United States; and whereas of has agreed to pur 

chase from me all the right, title, and interest which I have, or may have, in 
and to the said invention, in consequence of the grant of letters patent there¬ 
for, and has paid to me, the said the sum of five thousand dollars, 

the receipt of which is hereby acknowledged: Now this indenture witness- 
eth, that for and in consideration of the said sum to me paid, I have assigned 
and transferred, and do hereby assign and transfer, to the said 
the full and exclusive right to all the improvements made by me, as fully set 
forth and described in the specification which I have prepared and executed 
preparatory to the obtaining of letters patent therefor. And I do hereby 
authorize and request the Commissioner of Patents to issue the said letters 
patent to the said as the assignee of my whole right and title 

thereto, for the sole use and behoof of the said and his legal 

representatives. 

In Testimony Whereof, I have hereunto set my hand and affixed my seal 
this day of 18 

^ ( Signature .) {Seal.) 

Executed and Delivered in Presence of 

(255a.) 

Form of Assignment of Patent or of an Undivided 
Interest therein. 

To ALL WHOM IT MAY CONCERN: 

Whereas of in the County of 

and State of did obtain letters patent of the United States 

for , which letters patent bear date and are 

numbered. {If the assignment is made by an assignee add ,, and whereas 
is now sole owner of said letters patent, or of a one-half interest 
in said letters patent as the case 7 nay be.) 

And Whereas is desirous of acquiring an interest therein : 

Now this indenture witnesseth that in consideration of the sum of in 

hand paid, the receipt of which is hereby acknowledged, I, the said , 

have assigned, sold, and set over, and do by these presents assign, sell, and 
set over unto the said all {or one-half, as the case may be) the 


THE LA W OF PA TENTS. 


685 

right, title, and interest I have in and to the said letters patent and the 
invention thereby secured. 

The same to be held and enjoyed by the said * for his own 

use and behoof, and for the use and behoof of his legal representatives to 
the full end of the term for which said letters were granted, as fully and 
entirely as the same would have been held and enjoyed by me had this 
assignment and sale not been made. 

In Testimony Whereof, I have hereunto set my hand and affixed my 
seal this day of 188 . 

( Signature .) (Seal.) 

Sealed and Delivered in Presence of 


( 256 .) 


Form of a Grant of a Territorial Right in a Patent. 

Whereas I, of in the County of 

and State of did obtain letters patent of the United States for 

which letters patent bear date the day of 

18 ; and whereas of is desirous of acquiring an 

interest therein; Now this indenture witnesseth, that for and in considera¬ 
tion of the sum of two thousand dollars, to me in hand paid, the receipt of 
which is hereby acknowledged, I have granted, sold, and set over, and do 
hereby grant, sell, and set over, unto the said all the right, title, and 

interest which I have in the said invention, as secured to me by said letters 
patent, for, to, and in the several States of New York, New Jersey, and 
Pennsylvania, and in no other place or places; the same to be held and 
enjoyed by the said for his own use and behoof, and for the use 

and behoof of his legal representatives, to the full end of the term for which 
said letters-patent are granted (if it is intended to grant for any extended 
term, then add—and for the term of any extension thereof), as fully and 
entirely as the same would have been held and enjoyed by me had this grant 
and sale not been made. 

In Testimony Whereof, I hereunto set my hand and affix my seal this 
day of 18 . 


Sealed and Delivered in Presence of 


(Signature!) (Seal.) 


LICENSES. k 

The patentee or any assignee of the patent or of any undi¬ 
vided interest therein may license others to practice the inven¬ 
tion to any extent, and the grantee of a territorial interest may 
do the same within the limits of the territory granted to him. 

Such licenses should be made in writing, but this is not 
absolutely essential. 


686 


THE LA W OF PA TENTS. 


The statute does not require that licenses should be recorded 
although it is common to do so. 

No special form is prescribed for licenses, and their terms 
will vary according to the special contract between the parties. 
The following forms, however, may be useful as guides: 

License—Shop right. 

In consi .eration of the sum of fifty dollars paid by the firm of S. J. 
& Co., of L., in the county of M. and State of N., I do hereby license 
and empower the said S. J. & Co., to manufacture in said L., the improve¬ 
ment in cotton seed planters, for which letters patent of the United States No. 
71,846 were granted to me, November 13, 1878, and to sell the machines so 
manufactured throughout the United States, to the full end of the term for 
which said letters patent are granted. 

Signed at L. aforesaid this 22d day of April, 1884. 

A. B. 

License—not Exclusive—with Royalty. 

This agreement, made this 12th day of September, 1884, between A. B. of 
L., in the County of M. and State of N., party of the first part, and C. D. & 
Co. of O., in the County of R. and State of S., party of the second part, wit- 
nesseth, that whereas letters patent of the United States No. 87,540, for an 
improvement in horse rakes, were granted to the party of the first part, dated 
October 4, 1875, an d whereas the party of the second part is desirous of 
manufacturing horse rakes containing said patented improvement. Now 
therefore the parties have agreed as follows: 

1. The party of the first part hereby licenses and empowers the party of 
the second part, subject to the conditions hereinafter named, to the end of 
the term for which said letters patent were granted, to manufacture horse 
rakes containing the patented improvements and to sell the same within the 
United States. 

2. The party of the second part agrees to make full and true returns to 
the party of the first part, upon the first days of July and January in each 
year, of all horse rakes containing the patented improvement manufactured 
by them. 

3. The party of the second part agrees to pay to the party of the first 
part five dollars as a license fee upon every horse rake manufactured by said 
party of the second part containing the patented improvements, said pay¬ 
ments to be made within ten days after the days above provided for the semi¬ 
annual returns. 

4. Upon failure of the party of the second part to make returns or to 
make payment of license fees, as herein provided for, thirty days after the 
days herein named, the party of the first part may terminate this license by 
serving a written notice upon the party of the second part; but the party of 


THE LA W OF PA TENTS. 


6%7 

the second part shall not thereby be discharged from any liability to the 
party of the first part for any license fees due at the time of the service of 
said notice. 

In witness whereof the parties above named have hereunto set their 
hands the day and year first above written. 

A. B. 

C. D. & Co. 


THE OFFICE FEES, AND HOW PAYABLE. 

Nearly all the fees payable to the Patent Office are positively 
required by law to be paid in advance. For the sake of uni¬ 
formity and convenience, the remaining fees are required to be 
paid in the same manner; that is to say, before the labor is 
performed for which they are to be received in payment. 

The following is the tariff of fees established by law: 


On filing an application for a design patent, . . . $10.00 

On issuing a design patent for seven years, . . . 5.00 

On issuing a design patent for fourteen years, . . 20.00 

On filing a caveat,..10.00 

On filing an application for a patent for an invention, . 15.00 

On issuing each original patent for an invention, . . 20.00 

On filing a disclaimer, . ..10.00 

On every application for a re-issue, .... 30.00 

On every application for a division of a re-issue, . . 30.00 

On filing an appeal from a primary examiner to examin¬ 
ers-in-chief, . . . . . . . .10.00 

On filing an appeal to the Commissioner from examin¬ 
ers-in-chief, . . . . . . . .20.00 

On depositing a trade-mark for registration, . . .25.00 

On every copy of a patent or other instrument, except 

copies of printed patents, for every 100 words, . . .10 

On every copy of drawing, .... the cost of having it made. 
For recording every assignment of 300 words or under, 1.00 
For recording every assignment, if over 300 and not over 

1,000 words,.2.00 

For recording every assignment, if over 1,000 words, . 3.00 


Certified printed copies of the specifications and drawings 
of any patent issued since Nov. 20, 1866, and copies of the 



688 


THE LA IV OF PA TENTS. 


drawings of any patent granted before that date, are furnished 
by the Office at twenty-five cents each. 

The final fee on issuing a patent must be paid within six 
months after the time at which the patent was allowed, and 
notice thereof sent to the applicant or his agent. And if the 
final fee for such patent be not paid within that time, the 
patent will be withheld, and the invention therein described 
become public property as against the applicant therefor, unless 
he shall file a new application therefor within two years from 
the date of the allowance of the original application. 

The money for the payment of fees may be paid to the 
Commissioner or deposited with an Assistant Treasurer of the 
United States, or other officer authorized to receive the same, 
taking his certificate, and remitting the same to the Office, 
directed to the Commissioner of Patents. When this cannot 
be done without inconvenience, the money may be remitted by 
mail; and in every case the letter should state the exact 
amount enclosed. Letters containing money should be regis¬ 
tered at the post-office where mailed. 

In no case should money be enclosed with models. 

TAKING AND TRANSMITTING TESTIMONY. 

In interferences and other contested cases, the testimony 
of witnesses is taken on oath by written depositions in the 
presence of a magistrate, by whom the questions and answers 
are written down and afterwards transmitted under seal to the 
Commissioner of Patents. 

Due notice must be given by the party examining the 
witness to the other party, in order that he may be present 
personally or by attorney, and cross-examine. 

The rules established by the Office, in reference to the 
taking and transmitting of evidence in such cases, will be 
furnished gratis on application to the Commissioner. 

THE DOMINION OF CANADA. 

The Patent Law of the Dominion of Canada was enacted 
in 1872. It is long and minute; but in its leading principles 
and purpose it resembles the law of the United States. The 
principal differences are as follows : 


THE LA W OF PA TENTS. 


689 

The Patent Office is a part of the Department of Agricul¬ 
ture. There is a Commissioner of Patents, and applications 
for any purpose connected with patents must be made to him. 

No inventor can have a patent if his invention has been in 
public use or on sale more than a year in Canada, previous to 
his application, with the consent of the inventor. Nor if a 
patent for the same exists in another country more than twelve 
months previous to application in Canada. If, during said 
twelve months, any person begins to manufacture the article 
in Canada, he shall have the right to continue the same. 
Applicant must elect a domicil in Canada for the purposes of 
this patent, and declare the same in his petition. The article 
to be sold under this patent must be made in Canada, and 
not imported into it; and the manufacture must begin within 
two years from the granting of the patent; but these two 
years may be extended by the Commissioner. The patent- 
right is granted for five, ten, or fifteen years, at the option of 
the applicant. 


TRADE-MARKS. 

By the common law a merchant or manufacturer is entitled 
to the exclusive use of a “ trade mark ” to designate his goods, 
provided he has used it so long that it has become generally 
recognized as his. 

The trade-mark may consist of words, letters, figures, or 
drawings, or a combination of two or more of them. 

It must, however, indicate only the origin or ownership of 
the goods to which it is applied, and not be descriptive of their 
character, quality, or composition. 

Thus, for example, a miller may mark his flour with the 
figure of an eagle or with the name of his mill, and these marks 
will after a time be recognized as indicating that the flour so 
marked is made by him or at his mill. 

But he cannot appropriate to his exclusive use such words 
as “snow white,” “superfine,” “family flour,” or any other 
44 



THE LA W OF PA TENTS. 


690 

descriptive term, as any other person manufacturing a similar 
article has a right to describe it by any appropriate language. 

So the name of the place where a manufacturer carries on 
business cannot be so appropriated as to prevent others in the 
same place from using it in connection with their goods. 

No one will, however, be permitted to represent his goods 
as the goods of another, by imitating the latter’s labels, descrip¬ 
tions, or peculiar methods of putting up his goods, even if the 
latter do not strictly constitute a trade-mark; and in all cases 
of this kind it is enough for the plaintiff to show that the imita¬ 
tion is sufficiently close as to deceive the public, although there 
be differences in the details. 

If, however, the plaintiff is himself defrauding the public by 
falsely describing the character, quality, or composition of his 
goods, or when the articles themselves are injurious in their 
character, he can claim no assistance from a court of equity. 

A trade-mark may be sold with the business with which it 
is connected or the factory where the goods are made to which 
it is applied. In the settlement of partnership affairs, or in 
connection with the sale of the good will of a business, it is 
often an item of great value. 

An act of Congress, passed in 1870, provided for the gen¬ 
eral registration of trade-marks, but was held by the Supreme 
Court of the United States to be unconstitutional, and was 
therefore repealed. 

The present act, approved March 3, 1881, is limited in its 
operation to trade-marks used in commerce with foreign nations 
or with the Indian tribes. 

Its provisions are as follows : 

“Owners of trade-marks used in commerce with foreign 
nations, or with the Indian tribes, provided such owners shall 
be domiciled in the United States, or located in any foreign 
country or tribes which by treaty, convention, or law, affords 
similar privileges to citizens of the United States, may obtain 
registration of such trade-marks by complying with the follow¬ 
ing requirements: 

First. By causing to be recorded in the Patent Office a state¬ 
ment specifying name, domicile, location, and citizenship of the 


TRADE-MARKS. 


691 

party applying; the class of merchandise and the particular 
description of goods comprised in such class to which the 
particular trade-mark has been appropriated^ a description 
of the trade-mark itself, with fac-similes thereof, and a state¬ 
ment of the mode in which the same is applied and affixed 
to goods, and the length of time during which the trade-mark 
has been used. 

Second. By paying into the Treasury of the United States 
the sum of twenty-five dollars, and complying with such regula¬ 
tions as may be prescribed by the Commissioner of Patents. 

Sec. 2. That the application prescribed in the foregoing 
section must, in order to create any right whatever in favor of 
the party filing it, be accompanied by a written declaration 
verified by the person, or by a member of a firm, or by an 
officer of a corporation applying, to the effect that such party 
has at the time a right to the use of the trade-mark sought 
to be registered, and that no other person, firm, or corporation 
has the right to such use, either in the identical form or in any 
such near resemblance thereto as might be calculated to deceive; 
that such trade-mark is used in commerce with foreign nations 
or Indian tribes, as above indicated; and that the description 
and fac-similes presented for registry truly represent the trade¬ 
mark sought to be registered. 

Sec. 3. That the time of the receipt of any such application 
shall be noted and recorded. But no alleged trade-mark shall 
be registered unless the same appear to be lawfully used 
as such by the applicant in foreign commerce or commerce with 
Indian tribes as above mentioned or is within the provision of 
a treaty, convention, or declaration with a foreign power; nor 
which is merely the name of the applicant; nor which is 
identical with a registered or known trade-mark owned by an¬ 
other and appropriate to the same class of merchandise, or 
which so nearly resembles some other person’s lawful trade¬ 
mark as to be likely to cause confusion or mistake in the mind 
.of the public, or deceive purchasers. In an application for 
registration the Commissioner of Patents shall decide the pre¬ 
sumptive lawfulness of claim to the alleged trade-mark; and in 
any dispute between an applicant and a previous registrant, or 
between applicants, he shall follow, so far as the same may be 
applicable, the practice of the courts of equity of the United 
States in analogous cases. 

Sec. 4. That certificates of registry of trade-marks shall be 
issued in the name of the United States of America, under the 
seal of the Department of the Interior, and shall be signed 
by the Commissioner of Patents, and a record thereof, together 


THE LA W OF PA TENTS. 


692 

with printed copies of the specifications, shall be kept in books 
for that purpose. Copies of trade-marks and of statements and 
declarations filed therewith and certificates of registry so signed 
and sealed shall be evidence in any suit in which such trade¬ 
marks shall be brought in controversy. 

Sec. 5. That a certificate of registry shall remain in force for 
thirty years from its date; except in cases where the trade-mark 
is claimed for and applied to articles not manufactured in this 
country, and in which it receives protection under the laws 
of a foreign country for a shorter period, in which case it shall 
cease to have any force in this country by virtue of this act at 
the time that such trade-mark ceases to be exclusive property 
elsewhere. At any time during the six months prior to the 
expiration of the term of thirty years such registration may be 
renewed on the same terms, and for a like period. 

Sec. 6. That applicants for registration under this act shall 
be credited for any fee, or part of a fee, heretofore paid into the 
Treasury of the United States with intent to procure protection 
for the same trade-mark. 

Sec. 7. That registration of a trade-mark shall be prima facie 
evidence of ownership. Any person who shall reproduce, 
counterfeit, copy, or colorably imitate any trade-mark registered 
under this act and affix the same to merchandise of substantially 
the same descriptive properties as those described in the 
registration, shall be liable to an action on the case for damages 
for the wrongful use of said trade-mark, at the suit of the 
owner thereof; and the part aggrieved shall also have his 
remedy according to the course of equity to enjoin the wrongful 
use of such trade-mark used in foreign commerce or commerce 
with Indian tribes, as aforesaid, and to recover compensation 
therefor in any court having jurisdiction over the person guilty 
of such wrongful act; and courts of the United States shall 
have original and appellate jurisdiction in such cases without 
regard to the amount in controversy. 

Sec. 8. That no action or suit shall be maintained under the 
provisions of this act in any case when the trade-mark is used 
in any unlawful business, or upon any article injurious in itself, 
or which mark has been used with the design of deceiving the 
public in the purchase of merchandise, or under any certificate 
of registry fraudulently obtained. 

Sec. 9. That any person who shall procure the registry of a 
trade-mark, or of himself as the owner of a trade-mark or an 
entry respecting a trade-mark, in the office of the Commissioner 
of Patents, by a false or fraudulent representation or declara¬ 
tion, orally or in writing, or by any fraudulent means, shall be 


THE LAW OF COPYRIGHT. 


693 

liable to pay any damages sustained in consequence thereof 
to the injured party, to be recovered in an action on the case. 

Sec. 10. That nothing in this act shall prevent, lessen, im¬ 
peach, or avoid any remedy at law or in equity which any party 
aggrieved by any wrongful use of any trade-mark might have 
had if the provisions of this act had not been passed. 

Sec. 11. That nothing in this act shall be construed as 
unfavorably affecting a claim to a trade-mark after the term of 
registration shall have expired; nor to give cognizance to any 
court of the United States in an action or suit between citizens 
of the same State, unless the trade-mark in controversy is used 
on goods intended to be transported to a foreign country, or in 
lawful commercial intercourse with an Indian tribe. 

Sec. 12. That the Commissioner of Patents is authorized 
to make rules and regulations and prescribe forms for the 
transfer of the right to use trade-marks, and for recording such 
transfers in his office. 

Sec. 13. That citizens and residents of this country wishing 
the protection of trade-marks in any foreign country, the laws 
of which require registration here as a condition precedent 
to getting such protection there, may register their trade-marks 
for that purpose as is above allowed to foreigners, and have 
certificate thereof from the Patent Office. 

The general rules of practice in the Patent Office in respect 
to applications for the registry of trade-marks are substantially 
the same as those relating to patents for inventions. 

The application consists of a letter of advice, statement, 
and declaration under oath, signed by the person, or by a 
member of the firm, or officer of the corporation making the 
application, and the facsimile with duplicates thereof. 

The statement and declaration should be written on one 
side of the paper only. The fee of twenty-five dollars is 
required on filing the application. 

Where the trade-mark can be represented by a facsimile 
which conforms to the rules for drawings of mechanical patents 
(see ante p. 669), such a drawing may be furnished by the appli¬ 
cant, and the additional copies will be produced by the photo¬ 
lithographic process, at the expense of the Office. Or the 
applicant may furnish one facsimile of the trade-mark, mounted 
on a card ten by fifteen inches in size, and ten additional copies 
upon flexible paper not mounted ; but in all cases the sheet 
containing the mounted facsimile or the drawing must be 
signed by the applicant or his authorized attorney, and authen¬ 
ticated by two witnesses. 


694 


THE LA W OF PA TENTS. 


The following forms illustrate the manner of preparing 
papers for applications for registry of trade-marks under the 
foregoing act : 

Letter of Advice. 

To the Commissioner of Patents: 

The undersigned presents herewith a fac simile of his lawful trade-mark, 
and requests that the same, together with the accompanying statement and 
declaration, may be registered in the United States Patent Office, in accord¬ 
ance with the law in such cases made and provided. A. B. 

Statement. 

To all whom it may concern: 

Be it known that I, A. B., a citizen of the United States, residing at 
in the State of , and doing business at No. — Street in 

said city, have adopted for my use a trade-mark for wheat flour, of which 
the following is a full, clear, and exact specification: 

My trade-mark consists of a representation of a Rocky Mountain sheep 
and the words Big Horn. 

These have generally been arranged as shown in the accompanying fac¬ 
simile, in which the animal named, popularly known as the “ Big Horn,” is 
represented in an erect attitude upon a cliff or rock. In the background are 
mountains covered with forests, with distant white peaks; upon the sky 
portion are the words Big Horn. But the various accessories of the picture 
may be varied at pleasure or altogether omitted, without materially altering 
the character of the said trade-mark, the essential features of which are the 
words Big Horn and the representation of a Rocky Mountain sheep. 

This trade-mark I have used continuously in my business since July i, 
1884. 

The class of merchandise to which this trade-mark is appropriated is 
flour, and the particular description of goods comprised in such class on 
which I use it, is wheat flour. It is usually affixed to the goods by printing 
it on the bags, or stenciling it on the heads of barrels in which the flour is 
packed. A. B. 

Witnesses: C. D. and E. F. 

Declaration 

State of 

County of 

A. B., being duly sworn, deposes and says that he is the applicant named 
in the foregoing statement; that he verily believes that the foregoing state¬ 
ment is true; that he has at this time a right to the use of the trade-mark 
therein described; that no other person, firm, or corporation has the right 
to such use, either in the identical form or in any such near resemblance 
thereto as might be calculated to deceive; that it is used by him in com¬ 
merce between the United States and foreign nations or Indian tribes, and 



THE LA W OF PATENTS. 


695 

particularly with (here name one or more foreign nations or Indian tribes, 
or both, as the case may be ); and that the description and fac-similes 
presented for record truly represent the trade-mark sought to be registered. 

A. B. 

Sworn and subscribed before me, a , this day of , 18 . 

G. H., Notary Public . 


PRINTS AND LABELS. 

By an Act of Congress, approved June 18, 1874 (18 Statutes 
at Large, p. 78), provision is made for the registry of prints 
and labels in the Patent Office. 

For this purpose these terms are construed as synonymous, 
and are defined as any device, picture, word or words, figure or 
figures (not a trade-mark), impressed or stamped directly upon 
the articles of manufacture, or upon a slip or piece of paper or 
other material, to be attached in any manner to manufactured 
articles, or to bottles, boxes, or packages containing them, to 
indicate the contents of the package, the name of the manu¬ 
facturer, or the place of manufacture, the quality of goods, 
directions for use, etc. 

It has been held that the application for registry must be 
made before the print or label is actually used. 

The application must be accompanied by five copies of the 
print or label, and the registry fee of six dollars must be paid 
at the time of filing. 

Form of Application for Registration of Prints and Labels. 

To the Commissioner of Patents: 

The undersigned, A. B. of , and a citizen of the United States {or 

resident therein, as the case may be), hereby furnishes five copies of a label 
(or print) to be used for , of which he is the sole proprietor. The 

title of said label (or print) is , and the said label (or print) consists 

of the words and figures as follows, to wit: 

And he hereby requests that the said label (or print) be registered in 
the Patent Office, in accordance with the Act of Congress to that effect, 
approved June 18, 1874. A. B *> Proprietor. 

The certificate of registration will continue in force for 
twenty-eight years. 

The benefits of this act were originally confined to citizens 
or residents of the United States; but have been extended by 
treaties to British, German, Italian, and Belgian subjects. 


696 


THE LAW OF COPYRIGHT\ 


CHAPTER XXXIV. 

THE LAW OF COPYRIGHT. 

The law now in force in the United States is as follows: 

Section 4948. All records and other things relating to copyrights and 
required by law to be preserved, shall be under the control of the Librarian of 
Congress, and kept and preserved in the Library of Congress ; and the 
librarian of Congress shall have the immediate care and supervision thereof, 
and, under the supervision of the Joint Committee of Congress on the 
Library, shall perform all acts and duties required by law touching copy¬ 
rights. 

Sec. 4949. The seal provided for the office of the librarian of Congress 
shall be the seal thereof, and by it all records and papers issued from the 
office, and to be used in evidence, shall be authenticated. 

Sec. 4950. The librarian of Congress shall give a bond, with sureties, 
to the Treasurer of the United States, in the sum of five thousand dollars, 
with the condition that he will render to the proper officers of the Treasury 
a true account of all moneys received by virtue of his office. 

Sec. 4951. The librarian of Congress shall make an annual report to 
Congress of the number and description of copyright publications for which 
entries have been made during the year. 

Sec. 4952. Any citizen of the United States, or resident therein, who 
shall be the author, inventor, designer, or proprietor of any book, map, 
chart, dramatic or musical composition, engraving, cut, print, photograph, or 
negative thereof, or of a painting, drawing, chromo, statue, statuary, and of 
models or designs intended to be perfected as works of the fine arts, and 
the executors, administrators, or assigns of any such person, shall, upon 
complying with the provisions of this chapter, have the sole liberty of print¬ 
ing, reprinting, publishing, completing, copying, executing, finishing, and 
vending the same ; and, in the case of a dramatic composition, of publicly 
performing or representing it, or causing it to be performed or represented 
by others. And authors may reserve the right to dramatize or translate 
their own works. 

Sec. 4953. Copyrights shall be granted for the term of twenty-eight 
years from the time of recording the title thereof, in the manner hereinafter 
directed. 

Sec. 4954. The author, inventor, or designer, if he be still living and a 
citizen of the United States or resident therein, or his widow or children if 
he be dead, shall have the same exclusive right continued for the further 
term of fourteen years, upon recording the title of the work or description 
of the article so secured a second time, and complying with all other regula¬ 
tions in regard to original copyrights, within six months before the expiration 
of the first term. And such person shall, within two months from the date 
of said renewal, cause a copy of the record thereof to be published in one 
or more newspapers, printed in the United States, for the space of foul 
weeks. 


THE LAIV OF COPYRIGHT. 


697 

Sec. 4955. Copyrights shall be assignable in law by any instrument of 
writing, and such assignment shall be recorded in the office of the librarian 
of Congress within sixty days after its execution; in default of which it 
shall be void as against any subsequent purchaser or mortgagee for a 
valuable consideration, without notice. 

Sec. 4956. No person shall be entitled to a copyright unless he shall, 
before publication, deliver at the office of the librarian of Congress, or 
deposit in the mail addressed to the librarian of Congress, at Washington, 
District of Columbia, a printed copy of the title of the book or other article, 
orr a description of the painting, drawing, chromo, statue, statuary, or model 
or design for a work of the fine arts, for which he desires a copyright; nor 
unless he shall also, within ten days from the publication thereof, deliver at 
the office of the librarian of Congress, or deposit in the mail addressed to 
the librarian of Congress, at Washington, District of Columbia, two copies 
of such copyright book or other article, or, in case of a painting, drawing, 
statue, statuary, model or design for a work of the fine arts, a photograph 
of the same. 

Sec. 4957. The librarian of Congress shall record the name of such 
copyright book, or other article, forthwith in a book to be kept for that 
purpose, in the words following: “Library of Congress, to wit: Be it 
remembered that on the-day of-,-, A. B., of-, hath deposi¬ 

ted in this office the title of a book, (map, chart, or otherwise, as the case 
may be, or description of the article,) the title or description of which is in 
the following words, to wit: (here insert the title or description,) the right 
whereof he claims as author, (originator, or proprietor, as the case may be,) 
in conformity with the laws of the United States respecting copyrights. 
C. D., Librarian of Congress.” And he shall give a copy of the title or 
description, under the seal of the librarian of Congress, to the proprietor 
whenever he shall require it. 

Sec. 4958. The librarian of Congress shall receive from the persons to 
whom the services designated are rendered, the followingfees: 1. For record¬ 
ing the title or description of any copyright book or other article, fifty cents. 
2. For every copy under seal of such record actually given to the person 
claiming the copyright, or his assigns, fifty cents. 3. For recording and 
certifying any instrument of writing for the assignment of a copyright, one 
dollar. 4. For every copy of an assignment, one dollar. All fees so received 
shall be paid into the treasury of the United States. 

Sec. 4959. The proprietor of every copyright book or other article shal 
deliver at the office of the librarian of Congress, or deposit in the mai 
addressed to the librarian of Congress, at Washington, District of Columbia, 
within ten days after its publication, two complete printed copies thereof, of 
the best edition issued, or description or photograph of such article as here¬ 
inbefore required, and a copy of every subsequent edition wherein any 
substantial changes shall be made. 

Sec. 4960. For every failure on the part of the proprietor of any copy- 



THE LAW OF COPYRIGHT. 


698 

right to deliver, or deposit in the mail, either of the published copies, or 
description, or photograph, required by Sections 4956 and 4959, the pro¬ 
prietor of the copyright shall be liable to a penalty of twenty-five dollars, to 
be recovered by the librarian of Congress, in the name of the United States, 
in an action in the nature of an action of debt, in any district court of the 
United States within the jurisdiction of which the delinquent may reside or 
be found. 

Sec. 4961. The postmaster to whom such copyright book, title, or other 
article is delivered, shall, if requested, give a receipt therefor; and when so 
delivered he shall mail it to its destination. 

Sec. 4962. No person shall maintain an action for the infringement of 
his copyright unless he shall give notice thereof by inserting in the several 
copies of every edition published, on the title-page or the page immediately 
following, if it be a book; or if a map, chart, musical composition, print, 
cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or 
model or design intended to be perfected and completed as a work of the fine 
arts, by inscribing upon some visible portion thereof, or of the substance on 
which the same shall be mounted, the following words, viz.: “ Entered 

according to act of Congress, in the year-, by A. B., in the office of 

the librarian of Congress, at Washington; ” or, at his option, the word 
“ Copyright,” together with the year the copyright was entered, and the 
name of the party by whom it was taken out, thus: “ Copyright, 18—, by 
A. B.” (For additional copyright matter, see amendment on page 700.) 

Sec. 4953. Every person who shall insert or impress such notice, 
or words of the same purport, in or upon any book, map, chart, musical 
composition, print, cut, engraving, or photograph, or other article, for which 
he has not obtained a copyright, shall be liable to a penalty of one hundred 
dollars, recoverable one-half for the person who shall sue for such penalty, 
and one-half for the use of the United States. 

Sec. 4964. Every person who, after the recording of the title of any 
book as provided by this chapter, shall within the term limited, and without 
the consent of the proprietor of the copyright first obtained in writing, 
signed in the presence of two or more witnesses, print, publish, or import 
or, knowing the same to be so printed, published, or imported, shall sell or 
expose to sale any copy of such book, shall forfeit every copy thereof to 
such proprietor, and shall also forfeit and pay such damages as may be 
recovered in a civil action by such proprietor in any court of competent 
jurisdiction. 

Sec. 4965. If any person, after the recording of the title of any map 
chart, musical composition, print, cut, engraving, photograph, or chromo, or 
of the description of any painting, drawing, statue, statuary, or model, or 
design intended to be perfected and executed as a work of the fine arts, as 
provided by this chapter, shall, within the term limited, and without the con¬ 
sent of the proprietor of the copyright first obtained in writing, signed in 
presence of two or more witnesses, engrave, etch, work, copy, print, pub- 



7 HE LAW OF COPYRIGHT. 


699 

lish, or import, either in whole or in part, or by varying the main design 
with intent to evade the law, or, knowing the same to be so printed, pub¬ 
lished, or imported, shall sell or expose to sale any copy of such map or 
other article, as aforesaid, he shall forfeit to the proprietor all the plates on 
which the same shall be copied, and every sheet thereof, either copied or 
printed, and shall further forfeit one dollar for every sheet of the same 
found in his possession, either printing, printed, copied, published, imported, 
or exposed for sale; and in case of a painting, statue, or statuary, he shall 
forfeit ten dollars for every copy of the same in his possession, or by him 
sold or exposed for sale ; one-half thereof to the proprietor and the other 
half to the use of the United States. 

Sec. 4966. Any person publicly performing or representing any dramatic 
composition for which a copyright has been obtained, without the consent of 
the proprietor thereof, or his heirs or assigns, shall be liable for damages 
therefor; such damages in all cases to be assessed at such sum, not less 
than one hundred dollars for the first, and fifty dollars for every subsequent 
performance, as to the court shall appear to be just. 

Sec. 4967. Every person who shall print or publish any manuscript 
whatever, without the consent of the author or proprietor first obtained, (if 
such author or proprietor is a citizen of the United States, or resident 
therein,) shall be liable to the author or proprietor for all damages occasioned 
by such injury. 

Sec. 4968. No action shall be maintained in any case of forfeiture or 
penalty under the copyright laws, unless the same is commenced within two 
years after the cause of action has arisen. 

Sec. 4969. In all actions arising under the laws respecting copyrights 
the defendant may plead the general issue, and give the special matter in 
evidence. 

Sec. 4970. The circuit courts, and district courts having the jurisdic¬ 
tion of circuit courts, shall have power, upon bill in equity, filed by any 
party aggrieved, to grant injunctions to prevent the violation of any right 
secured by the laws respecting copyrights, according to the course and 
principles of courts of equity, on such terms as the court may deem reason¬ 
able. 

Sec. 4971. Nothing in this chapter shall be construed to prohibit the 
printing, publishing, importation, or sale of any book, map, chart, dramatic 
or musical composition, print, cut, engraving, or photograph, written, com¬ 
posed, or made by any person not a citizen of the United States nor resident 
therein. 

By the Act of June 18, 1874, it is provided that in the construction 
of this act, the words “engraving,” “cut,” and “print,” shall be applied 
only to pictorial illustrations or works connected with the fine arts, 
and no prints or labels designed to be used for any other articles of 
manufacture shall be entered under the copyright law, but may be regis¬ 
tered in the Patent Office. And the Commissioner of Patents is hereby 


700 


THE LAW OF COPYRIGHT. 


charged with the supervision and control of the entry or registry of such 
prints or labels, in conformity with the regulations provided by law as to 
copyright of prints, except that there shall be paid for recording the title of 
any print or label, not a trade-mark, six dollars, which shall cover the expense 
of furnishing a copy of the record, under the seal of the Commissioner of 
Patents, to the party entering the same. 

Sec. 4962, as amended by the Act of Aug. 1, 1882, provides “that manu¬ 
facturers of designs for molded decorative articles, tiles, plaques, or articles 
of pottery or metal subject to copyright, may put the copyright mark pre¬ 
scribed by R. S., § 4962, and acts additional thereto, upon the back or bottom 
of such articles, or in such other place upon them as it has heretofore been 
usual for manufacturers of such articles to employ for the placing of manu¬ 
facturers’, merchants’, or trade-marks thereon.” 

The Copyright Law of the Dominion of Canada closely 
resembles that of the United States. 

A copyright may be taken out by “ any person resident in 
Canada, or any person being a British subject, and resident in 
Great Britain or Ireland.” The book must be printed and pub¬ 
lished in Canada. 

I subjoin two forms of agreement between authors holding 
copyrights, with publishers, for the publication of the book. 
I add a form of assignment of copyright. 

( 260 .) 

Agreement between Author and Publisher.—Short Form. 

This Agreement, Made this day of in the year 

18 by and between ( name of author) and ( name of publisher) witnesseth as 
follows: 

The said ( name of author) being now preparing a work, to be called 
(or on the subject of ) to be in volume hereby 

agrees and promises to complete the same for the press as rapidly as prac¬ 
ticable, and to sell to the same ( name of the publisher) for the sum of 
dollars, to be paid as hereinafter mentioned, the exclusive right of printing, 
publishing, and selling the first edition thereof, to consist of 
copies. The copyright of said work to be secured and retained by said 
(name of author) as author and proprietor. 

And the said (name of publisher) hereby agrees and promises to publish 
said edition of copies, and to pay to said (name of author) the 

said sum of dollars, by their promissory, negotiable notes, pay¬ 
able at average credit of months from the day of publication of 


AGREEMENT BETWEEN A UTHOR AND PUBLISHERS. 


701 

said edition ; and also to give him copies of said work, for pi 

sentation. 

Witness our hands, in duplicate, this day of 

(Signature of author.) 

(Signature of publisher) 

( 261 .) 

Agreement between Author and Publishers—Fuller Form. 

Articles of Agreement, Made this day of 

A.D. 18 by and between of the first part, and 

of State of booksellers and publishers, of the sec¬ 

ond part, witnesseth, That the said ( name of the author ) in consideration of 
the agreements of the said {name of publishers') hereinafter contained, 
hereby agrees with them and their representatives and assigns that he will 
deliver to them on or before the day of A.D. 18 

the manuscript of a book now in course of preparation by him, to be entitled 
said manuscript to be properly prepared for the press, and to 
be sufficient in amount for volume of not less than 

pages, similar to those of that he will secure in his own name 

a good and valid copyright thereof for the United States, and any renewals or 
extensions of such copyright to which he may hereafter be entitled, and will 
defend the same from all infringements and adverse claims, and will save 
the said and their representatives and assigns, harmless and 

indemnified from all such infringements and claims, and from all damage, 
costs, and expenses arising to them by reason thereof; that he will license 
and allow the said and their representatives and assigns, but 

no other party or parties, to print, publish, and sell the aforesaid book, and 
any revisions of the same, during the continuance of any copyrights or 
renewals thereof which he may obtain therefor; provided, however, that the 
said and their representatives and assigns shall in substantial good 

faith keep and perform their agreements hereinafter contained ; and that dur¬ 
ing the continuance of the exclusive rights hereby granted, he will revise said 
book as occasion may require, and will with all reasonable diligence and 
speed superintend in the usual manner of authors the printing of all editions 
thereof; and will not prepare, edit, or cause to be published, in his name or 
otherwise, anything which may injure or interfere with the sale of the afore¬ 
said book. 

And the said {name of the publishers) in consideration of the foregoing 
agreements of the said author of the aforesaid book, hereby agree on their 
part that they will, upon the delivery to them of the manuscript thereof as 
aforesaid, proceed at once to print and publish an edition of said book, of at 
least copies, of which they will deliver to the said 

author for his own use without charge; that they will subsequently, from 
time to time, during the continuance of their enjoyment of the exclusive 
rights herein granted them, print and publish such other editions of said 


702 


THE LAW OF COPYRIGHT. 


book as the demand for the same may require, copies of each 

of which they will deliver to said author for his own use without charge; 
that they will use their best exertions to secure the speedy sale of all such 
editions published by them as aforesaid ; and that, upon the publication of 
each and every edition of said book, they will pay unto the said author, or 
his representatives or assigns, a sum equal to upon each and 

every copy of which said edition shall consist (excepting, however, said copies 
to be given to said author as aforesaid, and such other copies as may be 
used for presentation to editors and others for the purpose of obtaining 
reviews and notices, or otherwise to promote the sale of said book), which 
said sum shall be paid as follows ( state the manner and times of payment, as 
by cash or notes) but from any sum so to be paid as aforesaid shall first be 
deducted the cost of any alterations or corrections, exceeding ten per cent, 
of the cost of first setting up the type, made by the said author in said book 
after the portion altered or corrected is in type. 

In Witness Whereof, The said parties have hereto, and to another instru 
ment of like tenor, set their hands the day and year first above written. 

(Signature of author.) 

{Signature of publishers .) 

( Witnesses.) 

( 262 .) 

An Assignment of a Copyright. 

To all whom it may Concern : Whereas I, {name of assignor) of 
in the County of and State of did obtain a copy¬ 
right from the United States for a work entitled and the 

certificate of said copyright bears date A.D. eighteen hundred 

and 

Now this Deed Witnesseth, That for a valuable consideration, viz.: 

to me in hand paid, the receipt of which is hereby acknowl¬ 
edged, I have assigned, sold, and set over, and by these presents do assign, 
sell, and set over unto the said {name of assignee) all the right, title, and 
interest I have in the above book {or design , etc. ) as secured to me by said 
copyright. The same to be held and enjoyed by the said {name of assignee) for 
his own use and behoof, and for the use and behoof of his legal representatives, 
to the full end of the term for which said copyright was issued, as fully and 
entirely as the same would have been held and enjoyed by me had this 
assignment and sale not been made. 

In Testimony Whereof, I have hereunto set my hand and affixed my 
seal, this day of in the year of our Lord one thousand 

eight hundred and 

{Signature) {Seal.) 

Sealed and Delivered in Presence of 


RECOVERY AND COLLECTION OF DEBTS. 


703 


CHAPTER XXXV. 

MEANS PROVIDED FOR THE RECOVERY AND COLLECTION OF 

DEBTS. 

1. Arrest and Imprisonment. —In many States, no person 
can be arrested or imprisoned for debt. In California no female, 
and in Louisiana no female, and no person who has not a 
domicil in the State, and in Ohio no female, nor any officer or 
soldier of the Revolutionary army, can be arrested or impris¬ 
oned for debt. In all the States, the intention of the law is 
to limit imprisonment to those cases in which either fraud 
was committed in the contraction of the debt, or the debtor 
intends to abscond out of the reach of process. The provisions to 
effect this are very various. Generally, the plaintiff must file 
in the clerk’s office, or indorse upon the writ, an affidavit of the 
facts on which he grounds the right of arrest. In some of the 
States, provision is made for the imprisonment on execution of 
a debtor who can be found to possess, and refuses to surrender, 
property or interest, real or personal, which might be made 
available for the payment of his debts. 

2. The Trustee Process. —The trustee process, or garnishee 
process, or process of foreign attachment,—by all which names 
it is known,—is now nearly or quite universal. It is substan¬ 
tially this : A owes B a debt; but A has no property in his 
hands or possession which B can get at; but A has deposited in 
the hands of C, goods, or property, or credits of some kind, or A 
has a valid claim against C for services rendered, or money 
loaned, or goods sold, or something else; and this B gets by 
suing A, not with a common writ, but with a trustee writ, so 
called, in which he declares that C is the trustee of A, for prop¬ 
erty, etc.; and on this writ, if B recovers payment against A, 
he will have an execution against all A’s property in the hands 
of C, and all A’s valid demands against C. But C, when noti¬ 
fied, may come into court, and, in answer to all questions put 
to him, declare that he (C) has no property in his hands belong¬ 
ing to A, and that he does not owe A anything. And then the 
plaintiff may shape the questions as he pleases, to draw out the 
truth. 


704 


RECOVERY AND COLLECTION OF DEBTS. 


No one is adjudged trustee, or made to pay to the creditor 
the debt due to the debtor, if he has given a negotiable note for 
it, because he might have to pay it again to an honest indorsee. 
Nor if the debt is not certainly due; nor, generally, if it is due 
from the trustee in any official capacity, which will require him 
to account over for the money in his hands; nor if the debtor 
has recovered a judgment against the trustee, on which execu¬ 
tion may issue. 

The laws of the British Provinces for the collection of debts 
are similar in substance and purpose to those of the United 
States, with similar provisions against abuse or oppression. 

3. The Homestead.— In most of the States, a homestead is 
protected from creditors, and exempted from all attachment or 
execution, excepting in some States for taxes, or wages of labor 
to a certain amount. 

Various provisions are made in each of these States to com¬ 
bine a due protection of the creditor with proper prevention of 
fraud. The most common means are by requiring that “ the 
homestead” should be distinctly defined and set apart, and in 
many cases by the additional requirement, that the description 
and location of it should be put on public record. 

In all the States there are also exemption laws. These pro¬ 
vide very generally that bed and bedding and other necessary 
furniture, needful clothing, a Bible and school-books, and a cer¬ 
tain amount of food and fuel, shall not be taken on attachment 
or execution. In some States, the tools of a trade, the uniform, 
arms, and equipments of soldiers or officers in the militia, the 
family burying-vault and gravestones, a team or yoke of oxen, 
bees with their hives and honey, a boat for fishing, etc., are 
exempted. These statutes often enumerate the articles ex> 
empted quite minutely, and then add, that necessary articles to 
a certain amount of value, usually one or two hundred dollars, 
are also exempted. 

We give annexed to this chapter an Abstract of the Laws 
of all the States relating to the collection of debts. 


ABSTRACT OF THE COLLECTION OF DEBTS. 


705 


ABSTRACT OF LAWS RELATING TO THE COLLEC¬ 
TION OF DEBTS. 

INCLUDING ACTIONS, ATTACHMENT, ARREST, GARNISH¬ 
MENT, JUDGMENT, EXEMPTIONS, AND HOMESTEAD. 

ALABAMA. — Actions. Civil actions are begun by service of sum¬ 
mons, issued by the clerk of court, and accompanied by the complaint of the 
plaintiff. All actions on contracts for the payment of money may be joined 
in one. 

Attachment may be levied on any real estate, or personal property, or 
by garnishment. It may issue, (1) to enforce the collection of any debt, (2) 
for any money demand, (3) to recover damages for the breach of any contract, 
or, (4) when the action sounds in damages merely; and also on affidavit by 
the plaintiff that the defendant resides out of the State, or has absconded, or 
has secreted himself, or is about to remove, or has, or is about to dispose of 
his property fraudulently. 

Arrest is not allowed under the constitution. 

Garnishment. The judgment creditor in any action may obtain a pro¬ 
cess of garnishment against any person supposed to be indebted to the 
defendant, and the plaintiff may obtain such process when a summons and 
complaint have issued in any case. 

Judgment is not a lien. 

Stay Law. In actions before a justice of the peace defendant may at 
any time before execution is issued, stay the issue thereof thirty days, if the 
Judgment be less than twenty dollars, or sixty days if over twenty dollars, 
by giving a bond with surety in double the amount of the judgment. In cases 
in the Circuit Court execution can be staid only by appeal to the Supreme 
Court and giving bond. 

Exemptions. Personal property, to be selected by the debtor, to the 
value of one thousand dollars, is exempt from sale on execution, or other 
process of court, also the homestead of the debtor, not exceeding one hun¬ 
dred and sixty acres and not exceeding two thousand dollars in value, not in 
any city, town, or village, or in lieu thereof, any lot in any city, town, or village 
with the buildings thereon owned and occupied by the debtor, not exceeding 
two thousand dollars in value. Also are exempt, lots in cemeteries, pew or 
seat in church, proper wearing apparel, family portraits, books used in the 
family, and the wages or salaries of laborers or employees, for personal ser¬ 
vice, not exceeding twenty-five dollars per month. 

ARIZONA. — Actions. There is but one form of civil action. This is 
commenced by filing a complaint with the clerk of the court and taking out 
a summons. Actions must be brought in the name of the real party in inter¬ 
est. If the plaintiff be a non-resident, defendant may require security for 
costs. 

Attachment. In an action on an unsecured contract for the payment 
of money made or payable in the Territory, and in all cases against a non-resi¬ 
dent, an attachment will issue on filing with the clerk a statement setting 
45 


706 ABSTRACT OF THE COLLECTION OF DEBTS. 

forth the foregoing facts, and also that the sum claimed is a bona Jide debt 
and that the action is not brought to hinder or defraud creditors, and giving 
a bond with sureties for the payment of defendant’s costs and damages in 
case the attachment is dissolved. 

Arrest may be made in civil cases, (i) in actions on contracts when the 
defendant is about to depart from the Territory with intent to defraud his 
creditors, or when the debt was fraudulently contracted, or when he has 
removed or disposed of his property or is about to do so with like intent, (2) 
in actions for willful injury to person, character, or property, or for a fine or 
penalty, or for property embezzled or fraudulently misapplied by a public 
officer, an officer of a corporation, attorney, factor, broker, agent, clerk, or 
other person acting in a fiduciary capacity 

Garnishment. Debts due to a defendant may be attached on an ordi¬ 
nary writ of attachment by the sheriff leaving with the debtor a copy of the 
writ and a notice that the debt is attached. 

Judgment is a lien for two years on all real estate owned by the defend¬ 
ant in the county where the judgment is rendered or where a transcript of 
the same has been filed. 

Stay Law. There is no stay of execution except in case of appeal. 

Exemptions. A homestead consisting of land, dwelling, and water- 
right for irrigation, not exceeding five thousand dollars in value; spinning 
wheels, looms, and stoves put up and kept for use, a seat or pew in the 
church, cemetery lot, arms and accoutrements, wearing apparel of the debtor 
and his family, library and school books not exceeding one hundred and fifty 
dollars in value, family pictures, a sewing machine, and one musical instru¬ 
ment ; for each householder ten goats or sheep with their fleeces and yarn 
or cloth manufactured from the same, two cows, five swine, provisions and 
fuel for the comfortable support of the family for six months, all household 
goods, furniture, and utensils not exceeding six hundred dollars in value; the 
tools, implements, materials, stock, apparatus, team, vehicle, horses, harnes¬ 
ses, or other things to enable any person to carry on his business, not exceed¬ 
ing six hundred dollars in value, except when the judgment is for the pur¬ 
chase money of the identical articles, also provisions for the above exempted 
animals for three months. 

ARKANSAS. — Actions. Forms of actions existing before the adop¬ 
tion of the code are abolished, and there is now one form of action for private 
rights, called a civil actioti. The civil action is begun by filing with the 
clerk of the court a complaint, and causing a summons to issue thereon. 
Several causes of action may be joined in the same complaint. 

Attachment. The plaintiff may have an attachment for the recovery 
of money, including damages, when the defendant is a non-resident of the 
State; or has been absent four months ; or has departed with intent to 
defraud his creditors, or conceals himself, or his property, or has removed 
his property from the State, or is about to do so, or has disposed of his prop¬ 
erty, or is about to do so with fraudulent intent to cheat, hinder, or delay his 
creditors. An order of attachment is made by the clerk of the court, on the 


ABSTRACT OF THE COLLECTION OF DEBTS. 


707 

filing by the plaintiff of an affidavit showing the nature and amount of the 
plaintiff’s claim, that it is just, and the existence of one of the grounds of 
attachment above mentioned, and filing a bond of indemnity to the defendant. 

Arrest. The defendant in a civil action may be arrested on filing by 
the plaintiff with the clerk of the court, of an affidavit showing the nature of 
the claim, and charging the defendant with fraud in contracting the debt, 
that it is a just claim, and the amount expected to be recovered, and that the 
affiant believes that the defendant is about to depart from the State, and has 
concealed his property with intent to defraud his creditors, or that he has 
property and is about to depart from the State without leaving enough to 
satisfy the plaintiff’s claim. 

Garnishment. Process of garnishment may issue whenever the plain¬ 
tiff believes that any person is indebted to the defendant, or has in his hands 
or possession, goods and chattels, moneys, credits, or effects belonging to 
the defendant. 

Judgment rendered by the Circuit Court is a lien on the real estate of the 
defendant, lying in the county for which the court is held, and the lien con¬ 
tinues for three years. 

Judgment rendered by a justice of the peace becomes a lien on filing a 
transcript with the clerk of the Circuit Court. 

Stay Law. Execution may be staid three months, when the judgment 
is a decree for money, by giving a bond with good surety, except in actions 
against a collecting officer, attorney, or agent, or by a surety against his prin¬ 
cipal, or in a suit brought to enforce a vendor’s or mortgagee’s lien. 

Exemptions. Personal property of a person unmarried and not the 
head of a family to the value of two hundred dollars in addition to wearing 
apparel. Personal property of a person married or the head of a family 
to the value of five hundred dollars in addition to wearing apparel. The 
homestead of a married man or the head of a family, except on judgments 
for the purchase money, or to enforce specific liens against the property or 
for debts due in a fiduciary capacity. Such homestead if outside of a town 
or village shall consist of not exceeding one hundred and sixty acres of 
land with the improvements thereon, occupied as a residence, in all not 
exceeding in value twenty-five hundred dollars, and shall not be reduced 
to less than eighty acres without regard to value. If within a city, town, or 
village, it shall consist of not exceeding one acre of land with improvements, 
not in all exceeding in value twenty-five hundred dollars, and shall not be 
reduced to less than a quarter of an acre without regard to value. 

CALIFORNIA.— Actions. There is only one form of action for private 
remedies, which is commenced by filing a complaint, and issuing a summons 
thereon, directed to the defendant. 

Attachment. A writ of attachment may issue, in actions on contracts 
for the direct payment of money made or payable in the State and not 
secured by mortgage or otherwise, or where the security has become value¬ 
less, and in actions of contract against a defendant residing out of the State, 
on filing with the clerk of the court an affidavit that the defendant is actually 


joS ABSTRACT OF THE COLLECTION OF DEBTS. 

indebted to the plaintiff, stating the amount due, and also that the action is 
one of those above specified, and filing a bond of indemnity to the defendant. 

Arrest. The defendant may be arrested in an action for the recovery 
of money or damages, when he is about to leave the State with intent to 
defraud his creditors, or, in an action to recover possession of personal 
property, when the property has been fraudulently concealed or disposed of, 
and cannot be found, or, when the defendant was guilty of fraud in contract¬ 
ing the debt, or of embezzlement or fraudulent misapplication of money or 
property, or where the defendant has removed or disposed of his property 
with intent to defraud his creditors. The order for arrest is obtained from 
a judge of the court, on affidavit of one or more of the above causes, and 
furnishing security to defendant tor damages in case the arrest proves 
unlawful. No female can be arrested in any civil action. 

Garnishment. Debts due the defendant, and credits or personal 
property of the defendant in the hands of a third party may be attached by 
leaving a copy of the writ, and a notice that the debts, credits, or personal 
property are attached. 

Judgment is a lien on real property of the debtor, not exempt from 
being taken on execution, which is situated in the county where the action 
was brought, and becomes a lien on real estate in other counties by filing a 
transcript of such judgment in the several counties. The lien continues for 
two years, unless the judgment is satisfied. 

Stay Law. The power of staying execution for a reasonable time is 
discretionary with the court. An appeal, accompanied by sufficient security, 
operates as a stay. 

Exemptions. Chairs, tables, desks, and books to the value of two hun¬ 
dred dollars; necessary household furniture, including one sewing-machine, 
and one piano in actual use, or belonging to a woman; stoves, stove-pipe, 
and utensils, wearing apparel, beds, bedding, and bedsteads, family portraits 
and pictures painted by any member of the family, provisions actually pro¬ 
vided for three months, three cows and their sucking calves, four hogs with 
their sucking pigs, and food for such cows and hogs for one month; farm 
utensils, two oxen or two horses or two mules and harness, one cart or 
wagon, and food for said animals for one month, seed, grain, or vegetables 
for sowing, not exceeding in value two hundred dollars; and seventy-five 
bee-hives, and one horse and vehicle belonging to any person who is maimed 
or crippled, the same being necessary to his business; tools of mechanics 
or artisans; the office furniture, records, and seal of a notary public; the 
instruments of surgeons, dentists, music teachers, and other professional 
men; the professional libraries and office furniture of lawyers, judges, min¬ 
isters, editors, school and music teachers, and the indexes, abstracts, books, 
papers, maps, and office furniture of searchers of records necessary to be 
used in their profession. The cabin of a miner, not exceeding five hundred 
dollars in value, with all the implements and gear necessary for his business, 
not exceeding five hundred dollars in value, with two horses, mules, or oxen, 
and harness, and food for the same for one month, and the miner’s claim 


ABSTRACT OF THE COLLECTION OF DEBTS. 709 

worked by him, not exceeding one thousand dollars in value. Two oxen, 
mules, or horses and harness, with food for the same for one month, and the 
cart or other vehicle by which carters, hackmen, peddlers, etc., habitually 
earn their living, one horse, vehicle, and harness used by a physician, 
constable, or minister, in the practice of his profession, with food for such 
animals for one month; poultry not worth more than twenty-five dollars; 
the earnings of the judgment debtor for personal services rendered within 
thirty days next preceding the levy, when it appears by affidavit that such 
earnings are necessary for family support, but only half of such earnings are 
exempt when the debt is for necessaries; shares in homestead associations 
not exceeding one thousand dollars, when the debtor has no homestead 
selected; nautical instruments and wearing apparel of any mariner; life 
insurance policies, when the premium does not exceed five hundred dollars; 
all firearms required by law to be kept by any person, and one gun selected 
by the debtor; also a homestead, consisting of the land on which the debtor 
resides, to be selected by him, to the value of five thousand dollars, if the 
head of a family, or one thousand dollars of any other person. 

COLORADO. — Actions. There is only one form of action in civil 
cases, and actions are begun by filing with the clerk of the court a written 
complaint. Non-residents must give security for costs. 

Attachment. Writ of attachment may issue on filing with the clerk of 
the court a bond with sureties in double the amount claimed, and an affidavit, 
signed by the plaintiff or on his behalf, stating the nature and amount of the 
claim, as near as may be, and that defendant is a non-resident or a foreign 
corporation whose chief office or place of business is out of the State, or 
that for more than four months defendant has been absent from the State, 
or his whereabouts unknown, the indebtedness having been due during the 
whole of said period, or that the debtor has departed, or is about to depart, 
from the State, with the intention of having his effects removed, or is about 
to remove his property from the State to defraud or delay his creditors, or 
that the debtor conceals himself, or stands in defiance of the officer, so that 
process cannot be served on him, or that he fraudulently contracted the 
debt or incurred the obligation for which the suit is brought, or that he has 
fraudulently concealed, removed, or disposed of any of his estate with the 
intent to delay, hinder, or defraud his creditors, or that he is about to do so; 
or that he has failed or refused to pay the price of any article delivered to 
him which should have been paid for on delivery, or to pay for any services 
rendered by plaintiff at his request, which were to be paid for when said 
services were rendered. 

Attachments may also be made in any action brought on an overdue 
promissory note, bill of exchange, or other written agreement for the direct 
payment of money and on book accounts. 

Writ of attachment may issue upon debts not due if the affidavit states 
any of the foregoing grounds except the first three. 

Arrest. No person can be arrested on mesne process, and only on 
execution, when it is on an action of tort in which the finding shall be for 


710 ABSTRACT OF THE COLLECTION OF DEBTS. 

the plaintiff, and shall state that the defendant was guilty of malice, fraud, or 
willful deceit in committing the tort, and in this case he may be imprisoned, 
for one year, or until the judgment is paid. 

Garnishment. If the sheriff cannot find any property of the defendant, 
or sufficient to satisfy the attachment, he may summon any persons named 
in the writ, who are indebted to, or have goods, effects, or credits of the 
defendant in their hands; and in any case on the return of an execution 
unsatisfied, any person having property of the defendant or indebted to him 
may be summoned into court to answer concerning the same. 

Judgment becomes a lien on the real estate of the defendant in any 
county by filing in such county an abstract of the judgment, and continues 
as such for six years, but execution must issue within one year. 

Stay Law. There is no stay law in Colorado. 

Exemptions. The following property is exempt: i. The pictures, schoo.- 
books, and library of the debtor. 2. A seat or pew in church. 3. One burial 
lot. 4. Necessary wearing apparel of the family. 5. Provisions for the 
debtor and his family for six months, either provided, or growing, or both, 
and fuel for six months. 6. The tools, implements, or stock-in-trade of a 
mechanic, miner, or other person, used and kept for the purpose of trade, 
pot exceeding in value two hundred dollars. 7. The library and implements 
of professional men, not exceeding three hundred dollars. 8. Working 
animals to the value of two hundred dollars. 9. One cow and calf, ten 
sheep, and the necessary food for the same for six months, provided or 
growing, or both, also one farm wagon, one plow, harrow, and other farm 
implements, including harness and tackle for the team not exceeding fifty 
dollars, and the earnings of the head of a family for thirty days before writ. 
Every householder, the head of a family, is entitled to a homestead of a farm, 
or lot or lots in a city or town, to the value of two thousand dollars, but to 
secure this he must cause the word “homestead” to be entered on the 
margin of the recorded title signed by himself, and attested by the recorder, 
together with the date of record. 

CONNECTICUT. — Actions are begun by citation in which, if the action 
is brought for the recovery of a money demand, may be inserted a direction 
for attachment; the process to be signed by the Governor, Lieutenant-Gov¬ 
ernor, a senator, a justice of the peace, commissioner of the superior court, 
or judge or clerk of the court to which it is returnable, and when so signed, 
may run into any county. 

Attachment may be granted against the estate of the defendant both 
real and personal, or, in actions of law, against his person, when not exempt 
from imprisonment on execution in the suit. 

Arrest. The defendant may be arrested on mesne process, and on 
execution in cases of fraud or torts, but not in actions of contract, except 
for breach of promise to marry, misconduct in any professional employment, 
or for moneys received by defendant, in which cases he may be admitted to 
bail, or he may be released on taking an oath that he has not property to the 
amount of seventeen dollars, not exempt from being taken. 


ABSTRACT OB' THE COLLECTION OF DEBTS. 


7 II 


Garnishment. A third party having property of the defendant or 
owing him money, may be summoned in on foreign attachment. The wages 
of a debtor for personal service not exceeding ten dollars, or if he has a wife 
or family, twenty-five dollars are exempt, except that in suits for house-rent, 
provisions, wearing apparel, or fuel furnished to the debtor for the use of 
his family, only ten dollars are exempt, and in suits for board of debtor or 
family only three dollars are exempt. 

Judgment is not a lien on lands unless a certificate describing the court, 
date of judgment, names of parties, amount unsatisfied, and the premises on 
which the lien is claimed, is recorded in the town where the lands lie. 

Stay Law. There is no stay of execution in Connecticut. 

Exemptions. The necessary apparel and bedding, household furniture 
necessary for supporting life (which clause is construed liberally). The arms, 
military equipments, uniforms, or musical instruments owned by members 
of the militia, pension money received from the United States, implements of 
the debtor’s trade, library not exceeding in value five hundred dollars, one 
cow not exceeding one hundred and fifty dollars in value, sheep not exceed¬ 
ing ten, or one hundred and fifty dollars in value, two swine, and two hundred 
pounds of pork, and poultry not exceeding twenty-five dollars in value. Of 
the property of any one having a wife or family, twenty-five bushels of char¬ 
coal, and two tons of other coal, two hundred pounds of wheat flour, and two 
cords of wood, two tons of hay, two hundred pounds of beef and fish each, 
five bushels each of potatoes and turnips, ten bushels each of Indian corn 
and rye, or the meal and flour therefrom, twenty pounds each of wool and 
flax, or the yarn and cloth therefrom, the horse of a practicing physician not 
exceeding two hundred dollars in value, and a saddle, bridle, harness, and 
buggy, oyster-boat or shad-boat, and the rigging thereto not exceeding in 
value two hundred dollars, one sewing-machine, one pew and lots in a bury- 
ing-ground. Wages of any person not exceeding ten dollars, or if he have a 
wife or family twenty-five dollars, and all benefits from charitable associations 
are exempt, — except that in suits for necessaries only ten dollars is exempt, 
and only three dollars in suits for board of debtor or family. 

There is no homestead exemption. 

DAKOTA. — Actions must be brought in the name of the real party in 
interest and are commenced by the service of a summons. 

Arrest. The defendant in a civil action may be arrested in the follow¬ 
ing cases : in an action for damages in a cause of action not arising out of 
contract, where the defendant is not a resident of the Territory or is about 
to remove therefrom, or where the action is for an injury to person or char¬ 
acter, or for injury to or wrongful taking, detaining, or converting property; 
in an action for a fine or penalty, or on a promise to marry; or for money 
received or property embezzled or fradulently misapplied by any person 
in a fiduciary capacity, or for any misconduct or neglect in office or in a pro¬ 
fessional employment; in an action for the recovery of the possession of 
personal property where the same is disposed of or concealed to prevent the 
same being found or taken by the sheriff; also where defendant has been 


ABSTRACT OF THE COLLECTION OF DEBTS . 


712 

guilty of fraud in contracting the debt or obligation for which the action was 
brought, or has removed or disposed of his property, or is about to do so 
with intent to defraud his creditors. The order of arrest may be granted 
by the court on filing an affidavit that the case is one of those above men¬ 
tioned and giving security. 

A female cannot be arrested except for willful injury to person, character, 
or property. 

Attachment may be made in an action arising upon contract for the 
recovery of money only, or in an action for the wrongful conversion of per¬ 
sonal property, or against a foreign corporation or a non-resident; or a defend¬ 
ant who has absconded or concealed himself, or is about to remove his prop¬ 
erty from the Territory, or has secreted or disposed of his property with 
intent to defraud his creditors. The attachment may be made on the 
issuing of the summons or at any time afterward. Plaintiff is required to 
file an affidavit specifying the amount of the claim and the grounds thereof, 
and also that the case is one of these above specified, and give security. 

Garnishment. There are no statute provisions. 

Judgment is a lien on all real estate of the defendant except homestead 
for ten years after the same is docketed in the clerk’s office of the county 
where the land lies. 

Stay Law. There is no stay law. 

Exemptions. The following property is absolutely exempt: all family 
pictures, a pew, burial lot, family Bible, school books, and all the books used 
as a part of the family library not exceeding in value one hundred dollars; 
all wearing apparel of the debtor and his family, provisions and fuel for the 
family for one year, and the homestead hereinafter described. 

The debtor may also in addition to the above select from his other per¬ 
sonal property, goods, chattels, money, or other personal property to the 
value of fifteen hundred dollars which is also exempt. Instead of the 
fifteen hundred dollar exemption the debtor may select the following prop¬ 
erty which shall then be exempt, viz.: all miscellaneous books and musical 
instruments for the use of the family not exceeding five hundred dollars in 
value; all household and kitchen furniture, including beds, bedsteads, and 
bedding used by the debtor and his family, not exceeding five hundred dol¬ 
lars in value; three cows, ten swine, one yoke of cattle, and two horses 
or mules, or two yoke of cattle, or two span of horses or mules, one hundred 
sheep and their lambs under six months old, and all wool of the same, 
and all cloth or yarn manufactured therefrom; the necessary food for the 
above-mentioned animals for one year; also one wagon, one sleigh, two 
plows, one harrow, and farming utensils including tackle for teams, not 
exceeding three hundred dollars in value; the tools and implements of any 
mechanic used for the purpose of carrying on his trade or business, and in 
addition thereto stock in trade not exceeding two hundred dollars in value; 
and the library, any instruments of any professional person not exceeding 
six hundred dollars in value. No property is exempt from execution for the 
purchase money of the same. 


ABSTRACT OF THE COLLECTION OF DEBTS. 713 

The homestead is exempt except for taxes, mechanic’s liens for labor or 
materials furnished for the improvement of the same, and the purchase 
money thereof. 

If within a town plat it must not exceed one acre in extent, and if not 
within a town plat must not embrace more than one hundred and sixty acres, 
without limitation as to value. 

DELAWARE. —Actions may be commenced by a writ of capias or sum¬ 
mons, or in the case of a non-resident defendant by attachment of property. 

Arrest. The defendant may be arrested on mesne process, but, if he 
be a citizen of ,the State, only on plaintiff’s filing an affidavit of fraud, except 
in actions for libel, slander, or injury to person or property accompanied 
with violence. A non-resident plaintiff cannot arrest on mesne process a 
non-resident defendant for debt contracted without the limits of the State. 

The defendant can be arrested on execution only, on affidavit of fraud, 
and when it appears by affidavit or the return on scire facias that he has no 
property in the county sufficient to pay the debt and costs. 

Attachment. Writ of domestic attachment may issue after return by 
the officer showing that the defendant cannot be found, and proof of the 
cause of action, or on affidavit filed with the prothonotary that the defendant 
is justly indebted to the plaintiff in a sum exceeding fifty dollars, and has 
absconded from his usual place of abode, or gone out of the State with intent 
to defraud his creditors or to elude process, as it is believed. The proceeds 
of sale of property so attached are divided equally among defendant’s cred¬ 
itors, except that the attaching creditors are entitled to a double share to 
the extent of their debt. 

A writ of foreign attachment may issue against a person not an inhabi¬ 
tant of the State after a return as above, or an affidavit that the defendant 
resides out of the State, and is justly indebted to the plaintiff in a sum 
exceeding fifty dollars. 

Garnishment. The property, rights, or credits of the defendant in the 
hands of a third party may be attached, the officer giving notice to such third 
party that he attaches such property, rights, or credits for the benefit of all 
the defendant’s creditors. 

Judgment is a lien on real estate only from the time of actually entering 
it or signing it, and execution after being taken out continues a lien on per¬ 
sonal property for three years from the time of levy. 

Stay Law. Execution on judgments for want of affidavit of defense 
may be staid six months on giving good security. In suits before a magis¬ 
trate six months stay on defendant’s pleading his freehold, nine months on 
giving security. 

Judgments obtained at second term after suit, are allowed a stay of three 
months. 

Exemptions. The family Bible, school books and family library, family 
pictures, a seat or pew in church, burial lot, all the wearing apparel of 
debtor and family, and in addition the tools, implements, and fixtures 
necessary for carrying on his trade or business, not exceeding seventy-five 


714 ABSTRACT OF THE COLLECTION OF DEBTS. 

dollars in New Castle and Sussex Counties, and fifty dollars in Kent County. 
There is exempted to the head of the family in addition to the above other 
personal property not exceeding two hundred dollars in New Castle County, 
and not exceeding one hundred and fifty dollars in Kent County, consisting 
of household goods only. There is no such additional exemption in Sussex 
County. Sewing machines owned and used by seamstresses or private fami¬ 
lies are also exempt. 

In New Castle County all wages are exempt from attachment. 

There is no homestead exemption. 

DISTRICT OF COLUMBIA. — Actions in the supreme court of the 
District are commenced by filing in the clerk’s office a libel of information, 
bill, petition, or declaration, and service of writ. 

Plaintiff may include in his declaration all causes of action against the 
defendant, stating them in separate counts. 

Arrest. No person can be arrested in a civil suit, or imprisoned for 
debt other than fines. 

Attachment. Writs of attachment and garnishment may issue either 
at the commencement or during the pendency of the action, on plaintiff’s 
filing an affidavit, supported by testimony of one or more witnesses, setting 
forth the grounds of action and that plaintiff has a good right to recover, 
and also stating either that defendant is a non-resident or evades service of 
process by concealing himself or withdrawing temporarily from the District, 
or has removed or is about to remove some of his property from the 
District to defeat just demands. 

He must also give security for damages and costs. 

Garnishment. S zz Attachment. 

Judgment is a lien on real estate from the date of rendition. 

Stay Law. Execution is stayed only by appeal and filing a bond. 

Exemptions. Wearing apparel of all persons; and to heads of families 
who are house-holders, beds, bedding, household furniture, stoves, cooking 
utensils, etc., not exceeding three hundred dollars in value; provisions for 
three months’ support, whether provided or growing; fuel for three months; 
mechanics’ tools, and implements of debtor’s trade or business, amounting 
to two hundred dollars in value, with two hundred dollars’ worth of stock 
for carrying on business of debtor or his family; library and implements of 
professional man or artist, to value of three hundred dollars; one horse, one 
mule, or yoke of oxen, one cart, wagon, or dray, and harness for team; 
farming utensils, with food for such team for three months; and if debtor 
be a farmer, any other farming tools to the value of one hundred dollars; 
all family pictures, and all family library not exceeding in value four hundred 
dollars; one cow, one swine, six sheep. None of the above exemptions 
except wearing apparel, beds, bedding, household furniture, and provisions, 
extends to suits for wages of servants, common laborers, or clerks. The 
earnings, not exceeding one hundred dollars per month, of actual residents 
of the District who are married persons, or who have to provide for the 


ABSTRACT OF THE COLLECTION OF DEBTS. 


715 

support of a family in the District, for two months preceding the issuing of 
process are also exempt. 

FLORIDA. — Actions at law are commenced by filing a firacipe with 
the clerk. 

Arrest. There is no statute law authorizing the arrest of a defendant 
in a civil action. 

Attachment may issue on the affidavit in writing before a justice of 
the peace or clerk of the circuit court, that the amount demanded is actually 
due, and that the plaintiff has reason to believe that the defendant will part 
with his property fraudulently before judgment, or is actually moving his 
property out of the State, or is about to do so, or resides out of the State, or 
is removing, or conceals himself or his property, or is fraudulently dispos¬ 
ing of the same, or is removing or is about to remove beyond the judicial 
circuit in which he resides. Writ of attachment may issue before the debt 
or demand is due, provided it will become due within nine months, on plain¬ 
tiff’s filing an affidavit that the amount claimed is actually an existing debt 
or demand, the amount and date when it will become due, and also that the 
debtor is actually removing his property beyond the limits of the State, or is 
fraudulently disposing of or secreting the same for the purpose of avoiding 
the payment of his just debts, and furnishing security for costs and damages. 

Garnishment. A writ of garnishment may issue on all judgments or 
decrees rendered whether execution issued on such judgment be returned 
or not, provided an affidavit on behalf of the plaintiff be filed stating that he 
does not believe that the defendant has property in his possession on which 
levy can be made sufficient to satisfy the judgment. 

A writ of garnishment may also be sued out before judgment on filing a 
like affidavit. 

Judgment is a lien on real estate, and becomes so in any county by 
recording it in such county before the alienation of the property. It is 
binding in the county in which suit was brought from the date when it was 
rendered. • 

Stay Law. There is no stay of execution in Florida. 

Exemptions. A homestead of one hundred and sixty acres, or one-half 
an acre in an incorporated city or town, with the improvements on such real 
estate, together with one thousand dollars’ worth of personal property, to be 
selected by the debtor, but no property is exempt from sale for taxes, for 
obligations contracted for the purchase of the same or in making improve¬ 
ments thereon, or for labor performed thereon. 

Money due for personal labor or services of the head of a family is 
exempt from attachment or garnishment. 

GEORGIA. — Actions. All distinctions between real, personal, and 
mixed actions are abolished. 

Arrest. Imprisonment for debt is abolished, but in actions for the 
recovery of personal property, on plaintiff’s making affidavit that he has 
reason to believe that said property has been or will be eloigned or moved 
away, or will not be forthcoming to answer the judgment, defendant may be 


7 1 6 ABSTRACT OF THE COLLECTION OF DEBTS. 

arrested and committed to jail, unless he give bond with good security, or 
on application to the judge states on oath that he is neither able to give the 
security required by law nor produce the property, and can furnish satis¬ 
factory reasons for its non-production, when he may be discharged on his 
own recognizance. 

Attachments may issue: i. When the debtor resides out of the State. 
2. When he is actually removing or is about to remove without the limits of 
the county. 3. When he absconds. 4. When he conceals himself. 5. When 
he resists legal arrest. 6. When he is causing his property to be removed 
beyond the limits of the State, when he is disposing of or threatens to dis¬ 
pose of or conceals his property liable to the payment of his debts, or makes 
a fraudulent lien thereon, to avoid payment of his debts. Plaintiff must 
make affidavit before a judge of the superior court, or county court, a justice 
of the peace, or a notary public, setting forth one of the above causes, and 
the amount of the debt claimed, and must give a bond to the defendant to 
prosecute his suit, and the defendant may dissolve the attachment by giving 
bond. 

Garnishment may issue before or after judgment against debtors of the 
defendant, on plaintiff’s making affidavit of the amount due, and that he has 
reason to apprehend the loss of the same or of some part thereof unless 
garnishment issue, and giving bond with security for damages and costs. 

Judgment is a lien on all property, real or personal, except promissory 
notes and choses in action. Judgments draw interest, provided the original 
claim would do so. The judgment lien is discharged in four years on real 
property, and two years on personal property sold to a bona fide purchaser 
for a valuable consideration. 

Stay Law. If the debtor gives a bond with good security, execution 
may be stayed sixty days. 

Exemptions. The Constitution of 1877 provides that there shall be 
exempt from levy and sale by virtue of any process whatever, of the property 
of every head of a family, or guardian or trustee of a family of minor chil¬ 
dren, or every aged or infirm person, or person having the care and support 
of a dependent female of any age who is not the head of a family, real or 
personal property or both to the value of sixteen hundred dollars, except 
that such property is liable for taxes, purchase money, labor done thereon, 
or materials furnished therefor, and for the expense of removing encum¬ 
brances thereon. Debtor may waive in writing the benefit of these exemp¬ 
tions, except as to wearing apparel and not exceeding three hundred dollars’ 
worth of household and kitchen furniture and provisions to be selected by 
himself and wife. 

If the debtor, being the head of a family, does not avail himself of the 
foregoing exemption, he may claim those allowed by prior laws, viz.: fifty 
acres of land and five acres additional for every child under sixteen years, 
including the dwelling-house, if such house and improvements do not exceed 
in value two hundred dollars, such homestead not to be in any city, town, or 
village; or in lieu thereof, real estate in a city, town, or village, not exceeding 


ABSTRACT OF THE COLLECTION OF DEBTS. y\y 

five hundred dollars in value, one farm horse or mule, one cow and calf, ten 
head of hogs, and fifty dollars’ worth of provisions, and five dollars’ worth 
additional for every child, beds, bedding, and common bedsteads sufficient 
for the family, one loom, one spinning-wheel, and two pairs of cards and one 
hundred pounds of lint cotton, common tools of trade of the debtor and his 
wife, equipments and arms of a militia soldier, and a trooper’s horse, ordinary 
cooking utensils and table crockery, wearing apparel of the debtor and his 
family, family Bible, religious works, and school-books, family portraits, 
library of a professional man in actual practice not exceeding in value three 
hundred dollars, to be selected by the debtor. Also fifty bushels of corn, 
one thousand pounds of fodder, one one-horse wagon, one table, one set of 
chairs sufficient for the use of the family, and household and kitchen furni¬ 
ture, all not to exceed one hundred and fifty dollars in value. A family 
sewing-machine is exempt, whether the owner is the head of a family or not. 

The wages of mechanics, journeymen, and day laborers are also exempt. 

IDAHO. — Actions. There is but one form of action which is com¬ 
menced by filing a complaint and causing a summons to be issued thereon. 

Arrest. Defendant may be arrested in the following cases: in an 
action on a contract when defendant is about to depart from the Territory 
with intent to defraud his creditors; in an action for willful injury to person, 
character, or property; in an action for a fine or penalty, or on a promise to 
marry, or for money or property embezzled or fraudulently misapplied, or 
for misconduct or neglect in office or in professional employment, or for 
willful violation of duty. In an action to recover possession of personal 
property unjustly detained, where the property has been concealed, removed, 
or disposed of to prevent its being found; when defendant was guilty of 
fraud in contracting the debt or obligation sued on, or in concealing or dis¬ 
posing of the property for the taking, detention, or conversion of which the 
action was brought, or when defendant has removed or disposed of his 
property or is about to do so to defraud his creditors. 

Attachment may issue in actions on contracts for the express payment 
of money, where there is no security, on plaintiff’s filing an affidavit setting 
forth the amount due, and that the attachment is not sought nor the action 
prosecuted to hinder, delay, or defraud creditors, and giving security. 

Garnishment. On notice in writing from the plaintiff that any person 
has property or credits belonging to the defendant, the sheriff may attach 
the same by serving on such person a copy of the writ of attachment or 
execution, together with notice that such property or credits are attached. 

Judgment is a lien for two years from the time of docketing the same, 
on all real estate owned by the defendant in the county, and in any other 
county for two years after a transcript of the original docket has been filed 
with the recorder thereof. 

Stay Law. There is no stay of execution except in case of appeal. 

Exemptions, i. Chairs, tables, desks, and books to the value of two 
hundred dollars. 2. Necessary household, table, and kitchen furniture, 
including one sewing-machine, stoves and stove furniture, wearing apparel, 


yiS ABSTRACT OF THE COLLECTION OF DEBTS. 

beds, bedding and bedsteads, pictures and drawings executed by any member 
of the family, family portraits and their frames, provisions for three months, 
two cows with their sucking calves, and two hogs with their sucking pigs. 

3. Farming utensils and implements not exceeding three hundred dollars «in 
value, two oxen or two horses or mules and their harness, one cart or wagon, 
and food for such oxen, horses, or mules for one month, all seed grain or 
vegetables actually provided for the purpose of planting or sowing at any 
time within the ensuing three months, not exceeding two hundred dollars. 

4. Necessary tools or implements of a mechanic or artisan not exceeding 
five hundred dollars, notarial seal and records of a notary public, instruments 
and chests of a surgeon, physician, surveyor, or dentist, with their scientific 
and professional libraries, professional libraries and office furniture of 
attorneys, counselors, and judges, and libraries of ministers of the Gospel. 

5. The cabin or dwelling of a miner not exceeding five hundred dollars, also 
his mining tools and apparatus not exceeding two hundred dollars. 6. Two 
oxen, two horses, or two mules and their harness, and one vehicle, by the 
use of which a carter, peddler, teamster, or other laborer habitually earns 
his living, and one horse with vehicle and harness or other equipments used 
by a physician, surgeon, Or minister in making his professional visits, with 
food for such animals for one month. 7. The earnings of the judgment 
debtor for personal services rendered within thirty days of the levy of 
execution, when such earnings are necessary for the support of the family. 
8. Shares held by a member of an incorporated homestead association not 
exceeding one thousand dollars, if the holder is not the owner of a home¬ 
stead. 9. Insurance on the life of the debtor to the extent of an annual 
premium not exceeding two hundred and fifty dollars. 10. A homestead 
not exceeding five thousand dollars, when a declaration thereof by husband 
or wife has been duly acknowledged and recorded. 

ILLINOIS. —Actions are begun by a summons issued under the seal 
of the court ten days at least before the return of the writ. 

Attachments. The creditor may have an attachment against the prop¬ 
erty of the defendant when the debt exceeds twenty dollars. 1. Where the 
debtor is a non-resident. 2. Where the debtor conceals himself, or stands 
in defiance of the officer so that process cannot be served. 3 and 4. Where 
the debtor has departed, or is about to depart from the State with the intent 
to have his effects removed from the State. 5. Where the debtor is about 
to remove his property from the State, to the injury of creditors. 6, 7, and 

8. Where the debtor has, within two years preceding the filing of the affida¬ 
vit, fraudulently conveyed, concealed, or disposed of, or is about so to convey, 
conceal, or dispose of his property so as to hinder or delay his creditors. 

9. Where the debt sued for was fraudulently contracted. The creditor must 
file an affidavit with the clerk of the court, stating the nature and amount of 
the indebtedness, and any one of the preceding causes, and the place of 
residence of the defendant, if known; must give a bond to the defendant to 
prosecute his case and to pay costs if not successful. 

Arrest. The defendant may be arrested on mesne process or execu- 


ABSTRACT OF THE COLLECTION OF DEBTS. yig 

tlon from a court of record, in actions of contract and on judgments, on an 
affidavit setting forth the cause and amount due, and facts showing that 
the defendant fraudulently contracted the debt, or that he has concealed, 
assigned, or disposed of property with intent to defraud his creditors; or, in 
actions sounding in damages merely, the facts of the case, and that the 
plaintiff believes that the benefit of the judgment will be lost unless the 
defendant is required to give bail. Plaintiff must also give security for 
damages and costs. 

Garnishment. When the officer is unable to find property of the 
defendant, he may summon any persons designated by the plaintiff, who 
have property of the defendant, or who owe debts to the defendant, the same 
as if they were inserted in the writ. He may also summon such persons 
after judgment and return by the officer of “ no property found,” on affidavit 
by the plaintiff. The wages of defendant who is the head of a family, and 
residing with the same, to the amount of fifty dollars, are exempt. 

Judgment is a lien against real estate in the county for seven years, and 
bears interest at six per cent. There is no priority of judgments rendered 
at the same term of the court. 

Stay Law. There is no stay of execution in Illinois. 

Exemptions. A householder, having a family, is entitled to a home¬ 
stead in a farm or lot of land, and the buildings occupied as a residence, to 
the value of one thousand dollars; of personal property, the necessary wear¬ 
ing apparel, Bibles, school-books, family pictures, one hundred dollars’ worth 
of other property to be selected by the debtor, and, where the debtor is the 
head of a family, three hundred dollars’ worth of such property. 

INDIANA. —Actions. All distinctions of actions are abolished, and 
there is but one form for law and equity; must be prosecuted in the name 
of the real party to the suit, and are begun by filing with the clerk a com¬ 
plaint and causing a summons to issue thereon. 

Arrest. The defendant may be arrested and held to bail at any time 
before judgment, on an affidavit on behalf of the plaintiff, specifying his 
right to recover an existing debt or damages, and stating that affiant believes 
that the defendant is about to leave the State, taking his property with him, 
with intent to defraud his creditors. Plaintiff must give bond to pay to the 
defendant all damages if the order be wrongfully obtained. 

Attachment. Plaintiff may have a writ of attachment at any time 
where the action is for the recovery of money. Where the defendant is a 
foreign corporation or a non-resident of the State, or secretes himself, or is 
secretly leaving the State, or has left it, with intent to defraud his creditors, 
or is removing, or about to remove, his property from the State, not leaving 
enough to satisfy the plaintiff’s claim, or has sold, conveyed, or otherwise 
disposed of his property with intent to defraud or delay his creditors, or is 
about to do so. He must file with the clerk an affidavit showing the nature 
and amount of his claim, that it is just, and that he believes he ought to 
recover the same; and one of the grounds of attachment mentioned above, 
and give security to the defendant for damages and costs. 


720 ABSTRACT OF THE COLLECTION OF DEBTS. 

Garnishment. If an affidavit is filed at any time stating that the affian 
has good reason to believe that any one has property of the defendant which 
cannot be attached, or is indebted to him, the clerk may issue a summons to 
such person or persons to appear as garnishee. The garnishee may be 
arrested on affidavit filed, that it is believed that he is about to abscond, 
with intent to defraud creditors, and that he has property of the defendant 

Judgment for the recovery of money or costs is a lien on the real estate 
and chattels real of the defendant in the county where judgment was ren 
dered, for ten years, and becomes such a lien in other counties at the filing 
therein of a certified copy. Judgments bear interest from the date of sign¬ 
ing, at the same rate, not exceeding six per cent., as the contracts on which 
they were rendered. 

Stay Law. On giving bond with good surety, execution may be stayed 
as follows : On sums, excluding costs, not exceeding six dollars, thirty days ; 
on all sums between six and twelve dollars, sixty days; between twelve and 
twenty dollars, ninety days; between twenty and forty dollars, one hundred 
and twenty days; between forty and one hundred dollars, one hundred and 
fifty days; over one hundred dollars, one hundred and eighty days. 

Exemptions. An amount of property not exceeding six hundred dollars 
is exempt for any debt growing out of or founded on contract. The debtor 
may select the property that he wishes to have exempt. There is no home¬ 
stead exemption. 

IOWA. — Actions. All distinctions of forms are abolished; they must 
be prosecuted by and in the name of the real party in interest, except in the 
case of executors, administrators, guardians, and trustees, and are begun by 
serving the defendant with a notice that a suit will be brought on or before 
a certain day, and filing a petition containing a statement of the facts con¬ 
stituting the cause of action. 

Arrest. No arrest on mesne process. Debtor may be arrested on 
execution for examination, when satisfactory proof is made that he is about 
to leave the State, or conceal himself. 

Attachment. There may be an attachment at any time on a sworn 
petition, stating, i. That defendant is a foreign corporation. 2. Non-resi¬ 
dent. 3. Is about to remove his property from the State. 4. Has disposed 
of his property with intent to defraud his creditors. 5. Is about to do so. 
6. Has absconded, so that ordinary process cannot be served on him. 7. Is 
about to remove permanently from the county, and has property therein not 
exempt and that he refuses to pay to the creditor. 8. Is about to remove 
permanently from the State and refuses to pay or secure the debt. 9. Is 
about to remove his property out of the county with intent to defraud 
creditors. 10. Is about to convert his property into money with intent to 
place it out of reach. 11. Has property concealed. 12. That the debt i.s 
for property obtained under false pretences. 

Property may be attached before debt becomes due when nothing but 
time is wanting to fix an absolute indebtedness, if petition in addition to tha 
fact states that defendant has disposed of his property with intent to defraud 


ABSTRACT OF THE COLLECTION OF DEBTS. 


721 

creditors, or is about to do so, or that he is about to remove from the State 
and refuses to make any arrangements for securing the payment of the debt, 
which contemplated removal was not known to plaintiff at the time when 
the debt was contracted or that the debt was incurred foj* property obtained 
under false pretences. 

Plaintiff must file a bond with sureties before the issuing of the writ. 

Garnishment. On a writ of attachment the sheriff shall summon such 
persons as garnishees as plaintiff may direct, giving them written notice 
not to pay any debt due the defendant or thereafter to become due, and to 
retain any property belonging to defendant to be dealt with according to 
law. 

Judgment is a lien on real estate for ten years, in the county where it 
was rendered, from the date of such rendition, and in other counties from 
the date of filing an attested copy therein; bears interest at six per cent, 
unless a different rate was expressed in the contract, in which case it shall 
bear such rate of interest, not exceeding ten per cent. 

Stay Law. On contracts made since September 1, 1873, execution 
may be staid by giving bonds with good security, as follows: On sums not 
exceeding one hundred dollars, three months; on sums exceeding one 
hundred dollars, six months. On contracts made previous to September 1, 
1873, execution is stayed as follows: On sums not exceeding five dollars, 
one month; between five and twenty dollars, two months; between twenty 
and forty dollars, three months ; between forty and sixty dollars, four 
months; between sixty and one hundred dollars, six months; between one 
hundred and one hundred and fifty dollars, nine months; over one hundred 
and fifty dollars, twelve months. All judgments on which execution is 
stayed, bear interest at ten per cent. 

Exemptions. To a debtor, resident of the State and head of a family, 
the wearing apparel for himself and his family and trunks to contain the 
same, one musket or rifle and shot gun, private libraries and family Bibles, 
portraits, pictures, musical instruments, paintings, not kept for sale, seat or 
pew in church, and lot in burying-ground, not exceeding one acre, two cows 
and calf, one horse, fifty sheep and the wool therefrom and materials manu¬ 
factured from such wool, six stand of bees, five hogs and all the pigs under 
six months, the necessary food for all animals exempted, for six months; 
all the flax raised on ground not exceeding one acre and the manufactures 
therefrom, one bedstead and bedding for every two persons, cloth manufact¬ 
ured by the debtor not exceeding one hundred yards, household and kitchen 
furniture not exceeding two hundred dollars in value, spinning-wheel and 
looms, one sewing machine and other instruments of domestic labor kept for 
actual use, necessary provisions and fuel for six months, tools, instruments, 
or books of the debtor; if a farmer, mechanic, surveyor, or professional man; 
horse or team and wagon or other vehicle with the harness and rigging, by 
the use of which the debtor earns his living, and if the debtor is a printer, 
types, furniture, and materials necessary for his business not exceeding twelve 
46 


ABSTRACT OF THE COLLECTION OF DEBTS. 


722 

hundred dollars in value. The earnings of the debtor within ninety days of 
the levy are also exempt. If the debtor has started to leave the State he will 
have exempted only the wearing apparel of himself and family and other 
property not exceeding seventy-five dollars in value. 

The homestead of the debtor is also exempt, embracing the house used 
by him as a home, and if in a town plat, not exceeding one-half an acre in 
extent, or not exceeding forty acres if not in any town plat; but in either 
case it may amount to five hundred dollars is value, though exceeding the 
above amount. To an unmarried person not the head of a family or to a 
non-resident there is exempt ordinary wearing apparel and trunk necessary 
to contain the same. 

KANSAS. — Actions are brought in the name of the real party inter¬ 
ested, and begun by filing with the clerk a petition, and causing a summons 
to issue thereon, directed to sheriff. 

Arrest. Debtor may be arrested before or after judgment — on giving 
security and filing with the clerk an affidavit, stating the nature and amount 
of the claim, and that it is just, and one of the following reasons : 1. That 

defendant has or is about to remove his property out of the jurisdiction of 
the court with intent to defraud creditors. 2. That he has begun to convert 
his property into money for the purpose of placing it beyond the reach of his 
creditors. 3. That he has property fraudulently concealed. 4. That he has 
assigned or disposed of his property, or begun to do so, with intent to defraud 
his creditors. 5. That he fradulently contracted the debt. The affidavit 
must also state the facts claimed to justify the belief in the above causes for 
arrest. 

Attachment. Writ of attachment may issue for one of the following 
causes: 1. That the defendant is a foreign corporation or non-resident (but 
in this case only on a demand arising upon a contract, judgment, or decree, 
unless the cause of action arose wholly within the limits of the State). 2. 
That he has absconded with intent to defraud creditors. 3. That he has left 
the county with intent to avoid service. 4. So conceals himself that sum¬ 
mons cannot be served on him. 5. Is about to remove his property from 
the jurisdiction of the court with intent to defraud. 6. Is about to con¬ 
vert his property into money in order to place it beyond the reach of creditors. 
7. Has property concealed. 8. Has assigned or disposed of, or is about to 
dispose of, property to defraud or delay his creditors. 9. That he fraudu¬ 
lently contracted the debt. 10. Where the damages sought to be recovered 
are for injuries resulting from the commission of a felony or misdemeanor 
or the seduction of a female, n. Where the debtor failed to pay the price 
of any article delivered, when by the contract he was bound to pay for on 
delivery. An affidavit must be filed stating the nature and amount of the 
claim, and that it is a just one, and also one of the above causes, and security 
must be given unless the defendant is a foreign corporation or a non-resi¬ 
dent. Where either the fifth, sixth, seventh, or eighth of the above grounds 
exists the action may be brought and attachment made before the maturity 


ABSTRACT OF THE COLLECTION OF DEBTS. 


723 

of the debt by special order of court. Attachment may be dissolved by 
the defendant by giving bonds. 

Garnishment issues on filing with the clerk an oath, in writing, of 
belief that the person or persons named have property qf the defendant, or 
are indebted to him. ^ 

Judgment is a lien on real estate in the county where it was rendered 
from the first day of term in which it was so rendered, and in other counties 
from the filing therein an attested copy of the judgment, and such lien 
continues for five years. Judgment by confession or those rendered at the 
term the action is commenced are liens only from the date of entry. Unless 
execution is taken out within one year the lien ceases as against any other 
judgment creditor. 

Judgment bears interest at the rate of seven per cent. 

Stay Law. There is no stay of execution in the District Courts 
except on appeal. In justices’ courts stay is granted on filing a bond with 
good security, as follows: on amounts not exceeding twenty dollars, thirty 
days; between twenty and fifty dollars, sixty days; between fifty and one 
hundred dollars, ninety days ; over one hundred dollars, one hundred and 
twenty days. 

Exemptions. A homestead of one hundred and sixty acres of farming 
land with the improvements, or one acre in an incorporated city or town, 
occupied as the residence of the debtor and his family. Personal property 
of a debtor who is the head of a family, consisting of 1, family Bible, school¬ 
books, and family library; 2, family pictures, and musical instruments used; 
3, seat or pew in church and lot in burying ground; 4, wearing apparel, 
beds, bedding, and bedsteads used in the family, stoves and cooking utensils 
necessary for the use of the debtor and his family, one sewing-machine, all 
spinning-wheels and looms, and all other implements of industry and other 
household furniture not exceeding in value five hundred dollars; 5, two 
cows, ten hogs, one yoke of oxen, one horse or mule, or in lieu of one yoke 
of oxen and one horse or mule, a span of horses or mules, twenty sheep and 
the wool of the same; 6, the necessary food for the support of the stock 
mentioned for one year, one wagon, cart, or dray, two plows, one drag, and 
other farm utensils including harness for teams, not exceeding three hun¬ 
dred dollars in value; 7, grain, meat, and other provisions necessary for one 
year, and fuel for one year; 8, necessary tools of mechanic, miner, or other 
person used for trade or business, and in addition thereto stock in trade not 
exceeding foilr hundred dollars in value; 9, library, implements, and office 
furniture of a professional man. If the debtor is a resident, but not the head 
of a family, his wearing apparel, seat or pew in the church, and lot in burying- 
ground, and as above in 8 and 9. The earnings of the debtor or personal 
service for three months are exempt. 

KENTUCKY.— Actions. There is only one form for civil actions, 
which are begun by filing with the clerk of the court a petition, and causing 
a summons to issue thereon. 


ABSTRACT OF THE COLLECTION OF DEBTS. 


724 

Arrest. The defendant may be arrested and held to bail at any time 
before judgment, on filing with the clerk an affidavit showing, 1, the nature 
of the claim; 2, that it is just; 3, the amount; and 4, that the affiant 
believes either that the defendant is about to leave the State, and with intent 
to defraud his creditors has concealed or removed from the State his prop¬ 
erty, so that there will not be enough left to satisfy the plaintiff’s claim, or 
that the defendant has property, and is about to leave the State, without 
leaving enough to satisfy the plaintiff’s claim. Plaintiff must also give bond 
with sureties. 

Attachment. Writ of attachment issues against the property of a 
defendant or garnishee, in an action for the recovery of money, in the 
following cases: 1. Where the defendant, or one of them, is a foreign cor¬ 
poration, or a non-resident of the State (but in this case only for a debt or 
demand arising on contract). 2. Or has been absent from the State four 
months. 3. Has departed from the State with intent to defraud his creditors. 
4. Has left his county to avoid service. 5. Conceals himself so that sum¬ 
mons cannot be served on him. 6. Has removed or is about to remove his 
property from the State, not leaving enough to satisfy the plaintiff’s claim 
or claims of creditors. 7. Has sold or disposed of, or suffered to be dis¬ 
posed of, his property with intent to defraud or delay his creditors, or 8, is 
about to sell or dispose of his property, with such intent. Plaintiff must 
give security and file an affidavit showing the nature of the claim, that it is 
just, the amount of the same, and one of the foregoing causes. 

Garnishment. On return of the execution with return of “ no property 
found,” the plaintiff may bring a suit against the defendant for discover} 7 , 
and bring in any parties indebted to the defendant, or who have property of 
the defendant, as parties to the suit. 

Judgment is not a lien on defendant’s property. 

Stay Law. At any time before sale on execution, defendant may replevy 
the judgment for three months by giving bond with surety. 

Exemptions of a householder with a family resident in the State, on all 
debts contracted after June 1, 1884, two work beasts, or one and yoke of 
oxen, or in lieu of each work beast or yoke of oxen, if not on hand, other 
personal property to the value of seventy-five dollars; two plows and gear, 
or in lieu of each, if not in hand, other personal property to the value of 
seven dollars and fifty cents; one wagon, cart, or dray, and set of gear, or, if 
not on hand, other personal property to the value of fifty dollars; two axes, 
three hoes, one spade, one shovel; two cows and calves, if not on hand 
other personal property to the value of twenty-five dollars in lieu of each 
cow; beds, bedding, and furniture sufficient for family use; one loom and 
spinning-wheel, and pair of cards; all the spun yarn and cloth manufactured 
by the family, necessary for family use; carpeting for all family rooms in 
use; one cooking-stove and all cooking utensils ; all table ware and cutlery 
used by the family; one table; all books not to exceed fifty dollars in value; 
two saddles and their appendages; two bridles; six chairs, or so many as 
shall not exceed eight dollars in value; one cradle; all poultry on hand; ten 


ABSTRACT OF THE COLLECTION OF DEBTS. 725 

head of sheep, or if not on hand, other personal property not to exceed two 
dollars and fifty cents in value for each sheep; all wearing apparel; sufficient 
provisions for the family for one year, or if not on hand, other personal prop¬ 
erty or growing crop, not to exceed fifty dollars in value for each member of 
the family; provender for live stock; if not on hand, other personal property 
not to exceed seventy dollars in value; all washing apparatus not to exceed 
fifty dollars in value; one bureau; one wardrobe; one wash-stand; one gun, 
not to exceed fifty dollars in value; arms, ammunition, and equipments of a 
militia-man; one sewing-machine; and all family portraits and pictures. 

Debts contracted prior to 1884, are subject to the provisions of the 
exemption laws then in force, which differ somewhat from the above. 

In addition to the above, there are exempt, under prior laws still in force, 
tools, not exceeding one hundred dollars in value, of any mechanic who is a 
bona fide housekeeper with a family; libraries of ministers, professional 
libraries and instruments of physicians, surgeons, and attorneys, not exceed¬ 
ing five hundred dollars in value; and wages, not exceeding fifty dollars, of 
bona fide housekeepers with families, except for debts contracted for food, 
raiment, or house rent for family. Also dwelling-house and land, not 
exceeding one thousand dollars in value. 

LOUISIANA. — Actions are begun by petition, stating all the facts 
necessary to the cause and identification of the parties on which a citation 
issues, addressed to the defendant. 

Arrest. The defendant cannot be arrested to secure payment of a 
debt, but only to secure his person to answer to the suit. A non-resident 
cannot be arrested unless it appear on oath that he has absconded from his 
residence in his own State. 

Attachment. Writ of attachment issues when the defendant resides 
out of the State, or has left or is about to leave the State permanently; or 
when he conceals himself to avoid service of summons; or when he has 
assigned or disposed of, or is about to assign or dispose of, his property, 
with intent to defraud his creditors or give an unfair preference; or when 
he has converted, or is about to convert, his property into money, with intent 
to conceal the same; or when he is about to remove his property from the 
State before the debt becomes due. The plaintiff must file a sworn petition, 
setting forth the facts which render the writ necessary, and the nature and 
amount of the claim, and give bond with sureties. Writs of sequestration 
and provisional seizure issue in certain cases. 

Garnishment. In cases of attachment, or in proceedings after judg¬ 
ment, where the creditor believes that any other parties have property of the 
defendant, or are indebted to him, he may cite them in as parties. 

Judgment acts as a mortgage on all real estate of the debtor, from the 
date of record in the office of the Parish Recorder. It is prescribed, and 
ceases to be a lien in ten years. 

Stay Law. There is no stay of execution in Louisiana. 

Exemptions. One hundred and sixty acres of land with the buildings 
occupied by the debtor as a residence and owned by him, when he has a 


j 2 6 ABSTRACT OF THE COLLECTION OF DEBTS. 

family dependent on him, together with a certain amount of stock; but the 
property in no case to be worth more than two thousand dollars, and no 
homestead is allowed if the wife, in her own right, owns property to the 
amount of two thousand dollars. A written declaration of homestead must 
be executed by the person claiming the benefit of the same, and recorded in 
the book of mortgages for the parish where the homestead is situated. Also 
are exempt the clothes and linen of debtor or his wife, his beds, bedding, 
and bedsteads, or those of his family, his arms and military accoutrements, 
the tools, instruments, books, and sewing-machines necessary for the trade 
or calling by which the debtor makes a living, cooking-stove and utensils, 
dining-table and chairs, dishes, knives, forks, etc., wash-tubs, smoothing-irons 
and ironing-furnaces, family portraits, belonging to the debtor, and musical 
instruments in use; income of dotal property, money due for the salary of 
an office, and laborer’s wages. 

MAINE. — Actions are begun by original writ, framed to attach the 
goods and estate of the debtor, and for want thereof his body, or by sum¬ 
mons with or without an order of attachment, in the county where either 
party lives, unless it be a real action, when it must be brought where the 
land lies. 

Arrest. Defendant may be arrested on mesne process in an action of 
tort, and in an action of contract, when the debt is over ten dollars, exclusive 
of interest, and the debtor is about to depart permanently from the State, 
with his property, on affidavit by the creditor or his agent to the above effect. 
He may also be arrested on execution, but will be released on making a full 
and true disclosure of his property in the manner provided by statute. 

Attachment. All property not exempt may be attached without affi¬ 
davit, bond, or order of court, and it continues under lien for thirty days 
after judgment. 

Garnishment in this State is called Trustee Process. Personal 
actions, except detinue, replevin, malicious prosecution, slander, libel, and 
assault and battery, may be begun by such process, when the trustee has 
any property or effects of the defendant, or is indebted to him, but the wages 
of the defendant for the month preceding, not exceeding twenty dollars, are 
exempt, except for necessaries. 

Judgment. There is no lien of judgment, its place being supplied by 
the lien of attachment. 

Exemptions. The homestead of a householder to the value of five 
hundred dollars, provided a certificate has been filed in the registry of deeds, 
and one cemetery lot. Of personal property, the debtor’s wearing apparel, 
necessary household furniture not exceeding in value fifty dollars, one bed, 
bedstead, and bedding for every two persons, family portraits, Bibles and 
school-books, and a copy of the Statutes, and library not exceeding one 
hundred and fifty dollars in value, a pew in a meeting-house, and a lot 
in burying-ground, one cooking-stove, and iron stoves used for heating, 
charcoal, five tons of anthracite coal, fifty bushels of bituminous coal, twelve 
cords of wood, ten dollars’ worth of lumber, wood, or bark, produce until 


ABSTRACT OF THE COLLECTION OF DEBTS. 


727 . 

harvested, one barrel of flour, thirty bushels of corn, grain, and potatoes, 
flax raised on half an acre of ground, and articles manufactured therefrom 
for the family, tools of trade, sewing-machine, one pair of working cattle, or 
pair of mules, or one or two horses, not exceeding in value three hundred 
dollars, and hay for the winter, one harness worth twenty dollars for each 
horse or mule, a horse-sled or ox-sled, two swine, one cow and heifer, or two 
cows if no oxen, horse, or mule, ten sheep, and the lambs and wool from 
them, and hay for the winter; fifty dollars’ worth of domestic fowls; a plow, 
cart, harrow, and yoke, two chains, a mowing machine, and one boat 'of two 
tons, employed in fishing; and life and accident insurance policies, except 
excess of annual cash premiums for two years above one hundred and fifty 
dollars. 

MARYLAND. — Actions are begun as at common law, and the com. 
mon law forms of actions remain as simplified by the Code of Procedure. 

Arrest for debt is abolished. 

Attachment may issue against the property of the defendant in the 
hands of plaintiff, or any other person, or unoccupied real estate where the 
defendant is a non-resident, or where he absconds, on affidavit before a 
judge or justice of the peace that the debt is a bona fide one, and that he is a 
non-resident or has absconded, together with the evidences of the debt. It 
may also issue on an original process based on an account, note, bond, or 
other evidence of debt, on an affidavit that the defendant is really indebted, 
and is about to leave the State, or that he has, or is about to assign or dispose 
of his property with the intent to defraud his creditors, or that he fraudu¬ 
lently contracted the debt for which the action is brought, or that the defend- 
dant has, or is about to, remove his property out of the State with intent to 
defraud his creditors. Attachment may issue where two summonses have 
been returned '•'•non est ,” on proof by the plaintiff of his claim by affidavit 
and the production, if any, of written evidence of the debt, also in case of 
actions for false imprisonment or illegal arrest, for the amount of damages 
claimed. The salary of a public officer, or employee of a municipal corpora¬ 
tion, funds in hands of government due its agents, or property or funds in 
custody of the law or under control of court cannot be attached. Wages 
and salary not due at the time of attachment, cannot be attached, and one 
hundred dollars is exempt out of what is due. 

Garnishment may issue against the property of the defendant in the 
hands of any person, by attachment. (See Attachment.) 

Judgment is a lien on real estate of defendant acquired after judgment, 
as well as what was owned by him at the date of rendition, and becomes a 
lien in other counties by transferring it to such counties ; bears interest at 
six per cent. Judgments remain a lien for twelve years. 

Stay Laws. On all judgments rendered by the circuit courts for the 
counties the second term after the defendant has been summoned, he is 
entitled to stay of execution until the first Thursday of the following term. 
But on judgments rendered by the law courts of Baltimore city, and on all 
judgments by default in said city, execution may issue at once. 


728 ABSTRACT OF THE COLLECTION OF DEBTS. 

Exemptions. Wearing apparel, books, and tools used for trade or earn¬ 
ing a living, except under executions upon judgments for seduction or breach 
of promise to marry, and one hundred dollars’ worth of other property, 
selected by the debtor, a chose in action, or any intangible property, real or 
personal, except stocks, or equitable interests in personal property cannot be 
taken in execution. There is no homestead exemption. 

MASSACHUSETTS. — Actions are begun by original writ, framed to 
attach the goods or estate of the defendant, or for want thereof, to take his 
body, or by summons, with or without an order of attachment, in either case 
accompanied by a separate summons to be served on the defendant, may be 
brought in the county where either party lives unless it is to recover real 
estate, when it must be brought where the land lies. 

Arrest. Defendant may be arrested on mesne process in actions of 
contract on the plaintiff making affidavit before the proper officer, — (i) that 
he has good cause of action, and expects to recover more than twenty dol¬ 
lars, and (2) that the defendant, to the best of his belief, has property not 
exempt, that he does not intend to apply to the payment of the debt, and (3) 
that he believes that the defendant intends to leave the State. Or (instead of 
2 and 3), that the defendant is an attorney at law, and that the debt is for 
money collected on behalf of the plaintiff, and that the defendant unreasona¬ 
bly neglects to pay the same. And, in an action of tort, by making affidavit 
that he believes and has reason to believe that he has a good cause of action 
against the defendant and that he expects to recover at least one-third the 
damages named in the writ, and that he believes the defendant intends to leave 
the State so that execution if obtained cannot be served upon him. Defend¬ 
ant may be arrested on execution, in an action of tort, without an affidavit, 
and in an action of contract, where the damages, exclusive of costs, amount 
to twenty dollars or more, on affidavit (1) that the debtor has property not 
exempt which he does not intend to apply to the payment of the debt; (2) 
that since the debt was contracted or the cause of action accrued, the debtor 
has fraudulently conveyed or concealed his property with a design to secure 
the same to his own use or to defraud creditors; (3) that since the debt 
was contracted, or cause of action accrued, the debtor has lost one hundred 
dollars or more in illegal gambling; (4) that since the debt was contracted 
the debtor has willfully misspent his property so as to be able to swear that he 
has no property not exempt; (5) that the debtor contracted the debt with an 
intention not to pay it; (6) that the debtor is an attorney at law, and neglects 
unreasonably to pay money collected by him for the creditor. 

On an application based on the first of these grounds unless it appears 
that the debtor is about to leave the State the magistrate must first issue an 
order of notice to the debtor to appear and submit to examination touch¬ 
ing his estate. If on such examination it appears that he has property not 
exempt he will be required to assign the same for the benefit of the creditor. 

If he fails to appear or to obey any lawful order of the magistrate his 
arrest on the execution will be authorized. 

Attachment. All goods and estate, real and personal, may be attached 


ABSTRACT OF THE COLLECTION OF DEBTS. 


729 

without any affidavit, and the attachment continues as a lien for thirty days 
after judgment. Attachments may be dissolved, by the defendant, by giving 
bond to pay all damages recovered, with costs, or to pay the appraised value 
of the property released. 

Garnishment same as Trustee Process. All actions except replevin, 
tort for malicious prosecution, libel and slander, and assault and battery, may 
be begun by trustee process; and any one, including a corporation who is 
indebted to the defendant, or who has property of the defendant, may be 
summoned. 

Judgment is not a lien {see Attachment), but bears interest from the 
date of rendition, at six per cent. There is no stay of execution. 

Exemptions. The homestead of a householder having a family, to the 
value of eight hundred dollars in the farm or lot of land and buildings owned 
and occupied by him as a residence, provided the design to hold it as such 
has been duly recorded. Necessary wearing apparel for the family, one 
bedstead and bedding for every two persons, one iron stove used for warm¬ 
ing the dwelling-house, and fuel for the same not exceeding twenty dollars 
in value, other necessary household furniture not exceeding three hundred 
dollars in value; Bibles, school-books, and library used by himself or 
family, not exceeding fifty dollars in value ; one cow, six sheep, one swine, 
and two tons of hay; tools, implements, and fixtures necessary for business 
or trade, not exceeding in value one hundred dollars; materials and stock 
designed and necessary for his trade or business, not exceeding one hundred 
dollars in value; provisions necessary and procured for debtor and his 
family, not exceeding fifty dollars in value; one pew in church; the boats, 
tackle, and nets of fishermen actually used by them for their business, 
to the value of one hundred dollars; the uniform, arms, and accoutrements 
of a militia man ; rights of burial and tombs, one sewing machine not exceed¬ 
ing one hundred dollars in value, and shares in certain cooperative associa¬ 
tions not exceeding twenty dollars in value. Wages to the amount of twenty 
dollars, unless the debt was incurred for necessaries, and then ten dollars 
are also exempt. 

MICHIGAN. — Actions are substantially the same as at common law, 
and are begun by original writ. The assignee of any bond, note, or other 
chose in action may sue in his own name. 

Arrest. Personal actions on contract may be begun by a writ of capia 
ad respondendion, only to recover damages for breach of promise, or for 
money collected by a public officer, or for misconduct or neglect in office, or 
in any professional employment, on an affidavit being attached to the writ on 
behalf of the plaintiff, stating that he has a good cause of action, and believes 
that he is entitled to recover more than one hundred dollars. Personal 
actions may also be begun by capias in cases of claims for damages other 
than those arising on contract, where an order for bail is indorsed on the 
writ by a judge of the court from which the process issues, or a circuit court 
commissioner. 

Attachment. The creditor may proceed at any time before judgment, 


730 


ABSTRACT OF THE COLLECTION OF DEBTS. 


by attachment, in the circuit court for the county where either party lives, if 
the defendant have property therein, subject to attachment, and in case he 
has not property therein, in the county where the property lies, on filing an 
affidavit stating the indebtedness, the amount, which must exceed one hun¬ 
dred dollars, and that it is due on a contract, together with one of the follow¬ 
ing causes: i. That the defendant has absconded, or is about to abscond, or 
is concealed, to the injury of his creditors. 2. That defendant has assigned, 
concealed, or disposed of, or is about to assign or dispose of his property 
with intent to defraud his creditors. 3. That the defendant has or is about 
to remove his property from the State, with intent to defraud his creditors. 
4. That the defendant fraudulently contracted the debt. 5. That he is a 
non-resident, and has been so for three months previous to making the 
affidavit. 6. That he is a foreign corporation. Attachment is a lien on real 
estate from the date of depositing a certified copy in the registry of deeds 
for the county where the land lies. 

Garnishment. In all actions in justices’ courts or circuit courts, at the 
commencement of the suit, or at any time, the plaintiff may have a writ of 
garnishment on filing with the clerk an affidavit that he believes that any 
person (naming him) has property, effects, or credits of the defendant, or is 
indebted to him, and that he is in danger of losing the same, unless garnish¬ 
ment issues. 

Judgment bears interest at the rate of seven per cent., unless it is on a 
written instrument embodying a different rate, in which case such rate is 
followed, not exceeding ten per cent. Judgment becomes a lien on real 
property from the levy of execution, and from the time of filing a notice of 
such levy, containing the names of the parties, description, and date of the 
levy, in the office of the registry of deeds for the county where the land lies. 

Stay Laws. Defendant may have a stay of execution in justices’ courts 
within five days after the justice is authorized to issue execution, by filing a 
bond with good surety, as follows: for four months where the execution does 
not exceed fifty dollars : and six months where it does exceed fifty dollars. 

Exemptions, i. Spinning-wheels, weaving-looms, and stoves put up 
and kept for use. 2. Seat or pew in church. 3. Cemeteries, tombs, and 
rights of burial while in use. 4. Arms and accoutrements required by law, 
and all wearing apparel. 5. Library and school-books of each member of 
the family, not exceeding in value one hundred and fifty dollars, and family 
pictures. 6. To every householder, ten sheep and fleeces (or the yarn or 
cloth from the same), two cows, five swine, and the provisions and fuel for 
the comfort of the family for six months. 7. To a householder, all house¬ 
hold goods, furniture, and utensils, not exceeding in value two hundred and 
fifty dollars. 8. Tools, implements, materials, stock, apparatus, team, vehicle, 
horses, harness, or other things which enable a person to carry on the busi¬ 
ness in which he is engaged, not exceeding in value two hundred and fifty 
dollars. 9. Sufficient grain, hay, feed, and roots, whether growing or other¬ 
wise, for keeping all animals, exempt for six months. 10. Sewing-machine. 
Also a homestead of forty acres, and the dwelling-house and appurtenances 


ABSTRACT OF THE COLLECTION OF DEBTS. 


731 


not included in a recorded town plat, city, or village, or instead, one lot in a 
town plat, city, or village, and the dwelling-house thereon, owned and occu¬ 
pied as a residence, not exceeding fifteen hundred dollars in value. 

Only household goods, library, pictures, rights in cemeteries, one cow, 
and provisions and fuel for one month, not exceeding five hundred dollars 
in value, are exempt from execution on judgments for labor. 

MINNESOTA. — Actions. All distinctions are abolished, and there is 
but one form for all actions, which are begun by summons signed by the 
plaintiff and directed to the defendant, and must be prosecuted by the real 
party in interest. 

Attachments may be had at any time in actions for the recovery of 
money, and are sued out on affidavit specifying the cause and amount and 
grounds for the action, and that the defendant is a foreign corporation, or a 
non-resident, or has departed from the State with intent to defraud or delay 
creditors, or to avoid the service of the summons, or that defendant keeps 
himself secreted with like intent, or has assigned, secreted, or disposed of 
his property, or is about to do so, with intent to defraud his creditors, or 
that the debt was fraudulently contracted. Plaintiff must also give security 
for costs and damages. 

Arrest for debt is abolished. 

Garnishment is allowed in actions on contracts, on filing an affidavit at 
any time before or after judgment, stating that it is believed that any person 
(naming him) has property of the defendant, or is indebted to him in a sum 
exceeding twenty-five dollars if the action is in a court of record, or ten 
dollars in a justices’ court. 

Judgment is a lien, in the county where the cause was tried, from dock¬ 
eting the same, and in other counties from the date of filing a transcript in 
the office of the District Court, and continues a lien for ten years. 

Stay Laws. Stay of execution may be had in justices’ courts, as fol¬ 
lows, in addition to ten days allowed for appeal: On sums not exceeding ten 
dollars, one month; not exceeding twenty-five dollars, two months; between 
twenty-five and fifty dollars, three months; between fifty and seventy-five 
dollars, four months; and over seventy-five dollars, six months. Debtor 
must file a bond, with good surety, within ten days after judgment is ren¬ 
dered, conditioned to pay amount of judgment with seven per cent, interest. 
In district courts, on judgments for recovery of money, stay may be had for 
six months on giving security for payment of judgment with interest at 
twelve per cent. 

Exemptions, i. Family Bible. 2. Family pictures, school-books, or 
library, and musical instruments for use of family. 3. Seat or pew in 
church. 4. Lot in burying-ground. 5. Wearing apparel, beds, bedsteads, 
and bedding kept and used in the family, stoves and apparatus put up or 
kept for use, and cooking utensils, and all other household furniture not 
enumerated, and not exceeding five hundred dollars in value. 6. Three 
cows, ten swine, one yoke of oxen, and one horse, or in lieu of oxen and 
horse, a span of horses or mules, twenty sheep and the wool therefrom, 


ABSTRACT OF THE COLLECTION OF DEBTS. 


732 

either raw or manufactured, food for the stock for one year, either provided 
or growing, or both, one wagon, cart, or dray, one sleigh, two plows, one 
drag, and other farm utensils, not exceeding three hundred dollars in value. 
7. One sewing-machine. 8. Grain necessary for one year’s seed, not 
exceeding fifty bushels of wheat, fifty bushels of oats, thirty bushels of bar¬ 
ley, fifteen bushels of potatoes, three bushels of corn, and binding material 
used in harvesting crop. 9. Provisions and fuel for debtor and his family 
for one year. 10. Tools and instruments of mechanic, miner, or other person, 
used in carrying on his trade, and in addition, stock-in-trade, not exceeding 
four hundred dollars in value, and library and implements of a professional 
man. Also the wages of any laboring man or woman, or their minor chil¬ 
dren, not exceeding twenty dollars, for ninety days preceding the service of 
process. The presses, type, and other implements used in the printing or 
publication of a newspaper, not exceeding two thousand dollars in value, 
and stock-in-trade not exceeding four hundred dollars, are also exempt. 
Also a homestead of eighty acres, and the dwelling-house and appurtenances, 
not in an incorporated city, town, or village, or in lieu thereof, one lot in an 
incorporated city, town, or village having over 5,000 inhabitants, or one-half 
an acre of land in a city, town, or village having less than 5,000 inhabitants, 
with the house thereon. 

MISSISSIPPI. — Actions are begun by a summons, and the forms of 
actions and modes of proceeding are as at common law. 

Attachment. Remedy by attachment applies to all liquidated debts, 
and to all claims for damages for breach of contract, and process issues on 
an affidavit filed by the creditor or his agent, stating the nature and amount 
of the claim, and one or more of the following causes: 1. That defendant is 
a foreign corporation, or a non-resident. 2. That he has removed, or is 
about to remove, himself or property out of the State. 3. Or so absconds 
or conceals himself that service cannot be made on him. 4. That he con¬ 
tracted the debt or incurred the obligation in conducting the business of a 
ship, steamboat, or other water craft in some of the navigable waters of the 
State. 5. Or that he has property which he conceals, and refuses to apply 
to the payment of his debts. 6. Or that he has assigned or disposed of, or 
is about to assign or dispose of, his property with intent to defraud creditors, 
or to give a preference. 7. Or that he has or is about to convert his prop¬ 
erty into money in order to place it beyond the reach of his creditors. 8. Or 
that he fraudulently contracted the debt. 

Attachment may issue for a debt not due if sued on either the sixth, 
seventh, or eighth ground, if the creditor affirm that he has just cause to 
suspect and verily believes that the debtor will remove himself or his effects 
out of the State before said debt will become payable, with intent to hinder, 
delay, or defraud his creditors, or that he has removed with like intent, leav¬ 
ing property in the State. 

Plaintiff must also give security for damages and costs. 

Arrest. There is no arrest for debt. 


ABSTRACT OF THE COLLECTION OF DEBTS. 


733 


Garnishment. The writ of attachment may be levied on all property 
of the defendant wherever it is found, and if any third person has any prop¬ 
erty, effects, or credits of the defendant, or is indebted to him, he may be 
summoned as garnishee. 

Judgment bears interest at six per cent., unless there was a stipulation 
in the contract for a different rate, in which case such rate, not exceeding 
ten per cent., is allowed. Judgment is a lien on all property in the county 
where rendered, from the date of rendition, if enrolled, and in other counties 
from the date of enrolling the same in the office of the clerk of the court for 
such county. The time of limitation for judgments is seven years. 

Stay Laws. Stay of execution is allowed in justices’ courts on giving 
bond with surety as follows: On sums not exceeding fifty dollars, thirty 
days; on sums over fifty dollars, sixty days. 

Exemptions, i. Tools of a mechanic necessary for his trade. 2. Agri¬ 
cultural implements of a farmer necessary for two male laborers. 3. Imple¬ 
ments of a laborer necessary for his usual employment. 4. Books of student 
for educational purposes. 5. Wearing apparel. 6. Library of an attorney, 
physician, or minister, not exceeding two hundred and fifty dollars in value, 
and instruments of a surgeon or dentist to a like value. 7. Arms and accou¬ 
trements of militia men. 8. Globes, books, and maps of a teacher. And 
also of the property of each head of a family, one yoke of oxen, or two work 
horses or mules, two cows and calves, five head of stock hogs, five sheep, 
one hundred and fifty bushels of corn, ten bushels of wheat or rice, two 
hundred pounds of pork or other meat, one cart or wagon not exceeding one 
hundred dollars in value, one sewing-machine, and household and kitchen 
furniture not exceeding one hundred dollars in value, growing crops, one 
saddle and bridle, fifty bushels of cotton-seed, forty gallons of molasses or 
sorghum, and one thousand stalks of Louisiana cane. One hundred dollars 
of a laborer’s or mechanic’s wages are also exempt. For residents in cities, 
towns, and villages, there is exempt personal property to be selected by the 
debtor, not exceeding two hundred and fifty dollars in value. 

Also to every householder having a family, a homestead not exceeding 
one hundred and sixty acres in extent, or two thousand dollars in value. 

No property is exempt from execution for the purchase money of the 
same, or for taxes, materials furnished therefor, or for labor performed 
thereon. 

MISSOURI. — Actions are begun first, by filing with the clerk a petition 
setting forth the cause of action, and the remedy sought, and the voluntary 
appearance of the other party, or, second, by filing such petition, and suing 
out thereon a summons against the person, or an attachment against property. 

Arrest. There is none for debt. 

Attachment may be had, 1. Where the defendant is a non-resident. 
2. Where the defendant is a foreign corporation. 3. Where the defendant 
conceals himself so that service cannot be had on him. 4. Where he has 
absconded or absented himself so that summons cannot be served on him. 
5. Where defendant is about to remove his property from the State with 


ABSTRACT OF THE COLLECTION OF DEBTS. 


734 

intent to defraud, hinder, or delay his creditors. 6. Where defendant is 
about to remove out of the State. 7. Where defendant has fraudulently 
conveyed his property so as to hinder or delay his creditors. 8. Where 
defendant has fraudulently concealed, removed, or disposed of his property 
with a like intent. 9, 10. Where he is about to fraudulently convey or con¬ 
ceal his property with like intent. 11. Where cause of action accrued out 
of the State, and the defendant has absconded, or removed his property to 
this State. 12. Where the damages sought are for injuries arising from 
commission of a felony or misdemeanor, or the seduction of a female. 
13. Where the defendant has failed to pay the price of an article delivered, 
which by contract he was bound to pay for on delivery. 14. Where the 
debt was fraudulently contracted. Plaintiff must file an affidavit stating the 
nature and amount of his claim, and his belief that one or more of the above 
causes are true, and give bond for damages and costs. Attachments may be 
had for a debt not yet due on any of the grounds above specified, except the 
first four. 

Garnishment. The writ of attachment may be served on any one 
having property of, or who is indebted to the defendant, or who may be 
named by the plaintiff as a garnishee. The same may be done on execution, 
where insufficient property of the defendant is found to satisfy the claim. 

Judgment is a lien from the date of his rendition in the county where 
rendered, and becomes a lien on real estate in any other county by filing a 
transcript in the office of the clerk of the circuit court for such county, and 
it extends to real estate acquired after the rendition or filing of transcript, as 
well as to what was owned at the time, and it continues for three years. 
Judgments bear interest at six per cent., unless there was another rate 
expressed in the contract, in which case such rate is taken, not exceeding 
ten per cent. There is no stay of execution. 

Exemptions. To every head of a family, 1. Ten head of choice hogs, 
ten head of choice sheep, and produce in wool, yarn or cloth, two cows and 
calves, two plows, one axe, one hoe, one set of plow gears, and all necessary 
farming implements for one man. 2. Working animals to the value of one 
hundred and fifty dollars. 3. Spinning-wheels and cards, one loom and 
appliances for manufacturing cloth in and for the private family. 4. Spun 
yarn, cloth, and thread manufactured for family use. 5. Hemp, flax, and 
wool, not exceeding twenty-five pounds each. 6. Wearing apparel, four 
beds and bedding, and other household and kitchen furniture, not exceeding 
in value one hundred dollars. 7. Necessary tools and implements of trade 
of a mechanic. 8. Arms and accoutrements of a militia man. 9. Provisions 
for the family, not exceeding one hundred dollars in value. 10. Bibles and 
other books, lettered grave-stones, and pew in church, n. Lawyers, physi¬ 
cians, and clergymen may select necessary books in place of other property 
exempt, and doctors may select medicines. The head of a family may select, 
in lieu of the property mentioned in the above first two subdivisions, other 
property, real or personal, not exceeding in value three hundred dollars. 

Every housekeeper or head of a family is also entitled to hold exempt 


ABSTRACT OF THE COLLECTION OF DEBTS . 


735 

from execution the homestead occupied by him, not exceeding in extent 
eighteen square rods, or in value three thousand dollars, in cities of over 
forty thousand inhabitants; and not exceeding in extent thirty square rods, 
or in value fifteen hundred dollars, in cities having less than forty thousand 
and more than ten thousand inhabitants; and five acres in extent, and fifteen 
hundred dollars in value, in cities having less than ten thousand inhabitants; 
and not exceeding one hundred and sixty acres, and fifteen hundred dollars 
in value, in the country. 

To a person not the head of a family there is exempt his wearing apparel, 
and if a mechanic, the necessary tools and implements of his trade. 

MONTANA.— Actions. There is but one form of civil action. It is 
begun by filing a complaint with the clerk. 

Arrest may be had in all cases of fraud, or when the action is for willful 
injury to person, character, or property; also in an action for fine or penalty, 
or for money or property embezzled or fraudulently misapplied by a public 
officer, officer of a corporation, attorney, or other person acting in a fiduciary 
capacity; or where the defendant has removed or disposed of his property, 
or is about to do so, with intent to defraud his creditors. 

Attachment. All property not exempt from execution may be attached 
on filing a sufficient bond, and an affidavit showing that defendant is indebted 
to plaintiff upon a contract express or implied for the payment of money, 
gold dust, or other property unsecured by pledge or mortgage, or the security 
on which has become insufficient. 

Attachments may be made before the demand is due, if defendant is 
leaving or about to leave the Territory with all his property which might be 
subjected to the payment of the debt, for the purpose of defrauding his 
creditors; or is disposing of or about to dispose of his property subject to 
execution, for the same purpose. This must be shown by affidavit. 

Garnishment. Personal property or credits in the possession or under 
the control of another may be attached by service on such person a copy of 
the writ, and notice that the property or credits are attached. 

Judgments are liens on real estate of the debtor then owned or after¬ 
wards acquired, in the county where the judgment is entered, for six years 
from the time of docketing the same. A similar lien may be acquired on 
lands in any other county by filing a certified transcript of the docket with 
the recorder. 

' Stay Law. There is no statutory enactment on the subject. 

Exemptions. All clothing of the debtor and family, and chairs, tables, 
desks, and books to the value of one hundred dollars; also all necessary 
household, table, and kitchen furniture, including every article in use for the 
comfort of the debtor or his family, and provisions and fuel for two months; 
one sewing-machine, not exceeding one hundred dollars, in actual use; also 
one horse, two cows with their calves, two swine, and fifty domestic fowl. 
In addition to the above, there is exempt to a farmer his farming utensils 
not exceeding six hundred dollars in value, two oxen, or one horse or mule 
and their harness, two cows, one cart or wagon, and food for such stock for 


736 ABSTRACT OF THE COLLECTION OF DEBTS. 

three months, two hundred dollars’ worth of seeds, grain, or vegetables 
actually provided for the purpose of sowing or planting. The proper tools, 
instruments, or books of any mechanic, physician, dentist, lawyer, or clergy¬ 
man. To a miner, his dwelling, not exceeding in value five hundred dollars, 
and all his tools and machinery necessary for carrying on his avocation, not 
to exceed in value five hundred dollars, and one horse or mule or two oxen 
and their harness, with their food for three months, in case such stock is 
used with any species of hoisting gear upon the mine. One horse or mule, 
or two oxen, vehicle, and harness, by which the debtor habitually earns his 
living, and one horse, with vehicle and harness, of physician or clergyman 
used in making professional visits, with food for such stock for three months. 
All arms, uniform, etc., required by law to be kept by any person. The 
wages of the debtor earned within the thirty days preceding the levy, if 
necessary for the use of his family residing in the Territory and supported 
wholly or partly by his labor. A homestead, not to exceed in value twenty- 
five hundred dollars; if agricultural land, not to exceed one hundred and 
sixty acres; if within a town, city, or village, not to exceed one-fourth of an 
acre. 

NEBRASKA. — There is but one form for all civil actions, which must 
be prosecuted by the real party in interest, and which are begun by filing a 
petition with the clerk of the court, and causing a summons to issue thereon. 

Arrest. An order for arrest may issue before or after judgment, on 
filing an affidavit with the clerk of the court, stating the nature and amount 
of the claim, that it is just, and one of the following grounds: i. That the 
defendant has removed, or begun to remove, his property out of the jurisdic¬ 
tion of the court, with intent to defraud creditors. 2. That he has begun to 
convert his property into money to place it beyond the reach of his creditors. 

3. That he has property or rights of action which he fraudulently conceals. 

4. That he has assigned or disposed of, or begun to assign or dispose of, his 
property with intent to defraud creditors. 5. That he fraudulently contracted 
the debt. The affidavit must also contain a statement of the facts claimed 
to justify the belief. Plaintiff must also give security for damages. 

Attachment may issue on filing with the clerk an affidavit stating the 
nature and amount of the claim, that it is just, and one of the following 
grounds: 1. That defendant is a foreign corporation, or non-resident. 
2. That he has absconded with intent to defraud creditors. 3. That he has 
left the county of his residence to avoid service of the summons. 4. That 
he so conceals himself that service cannot be made on him. 5. That he is 
about to remove his property beyond the jurisdiction of the court with 
intent to defraud. 6. That he is about to convert his property into money 
to place it beyond the reach of creditors. 7. That he has property con¬ 
cealed. 8. That he has removed or disposed of his property, or is about to 
do so, with intent to defraud. 9. That he fraudulently contracted the debt. 

A bond is also required, unless the defendant is a non-resident. 

Garnishment. In cases of attachment, if the plaintiff makes an oath 
in writing, that he believes that any person or corporation to be named, and 


ABSTRACT OF THE COLLECTION OF DEBTS . 737 

within the county, has property (describing it) of the defendant, the said 
property, whether debts, choses in action, or other property, may be gar¬ 
nished, and the garnishee summoned to appear at court and answer in 
relation thereto. Also on return of an execution, unsatisfied, the judgment 
creditor may have a writ of garnishment. 

Judgment in the district court is lien on lands within the county where 
it was rendered, from the first day of the term at which judgment is rendered 
(except judgments by confession and those rendered at same term that action 
was commenced, which are liens from the date of rendition), and in other 
counties from the filing a transcript with the clerk of the court, and the lien 
continues for five years. All other lands, as well as goods and chattels, are 
bound from the time of seizure on execution. Judgments of justices’ and 
county courts are liens from the date of docketing a transcript thereof in the 
office of the clerk of the district court. Interest on all decrees or judgments 
for the payment of money, shall be from the rendition thereof, at the rate of 
seven per cent, till paid, unless the contract on which the judgment was 
entered specified a different rate, then at such rate. 

Stay Laws. In district courts judgments for fifty dollars and under 
three months, between fifty and one hundred dollars six months, over one 
hundred dollars nine months. 

In justice’s courts judgments for ten dollars and under, sixty days, between 
ten and fifty dollars ninety days, between fifty and one hundred dollars six 
months, between one hundred and two hundred dollars nine months. 

In county courts judgments for sums under two hundred dollars on the 
same terms as in justice’s courts, over two hundred dollars same as in dis¬ 
trict courts. 

Bond with sureties is required. 

No stay is allowed on judgments rendered on appeal or for money received 
in an official or fiduciary capacity. 

Exemptions. To heads of families having no homestead there is exempt 
five hundred dollars’ worth of personal property. Homestead not exceeding 
two thousand dollars in value or one hundred and sixty acres not in an 
incorporated city or village, or in lieu thereof, two contiguous lots on a 
recorded plot in a city, town or village, or a lot of twenty acres within 
the limits of an incorporated city, town, or village; but not cut up into lots 
or squares. Of personal property: 1. Family Bible. 2. Family pictures, 
school-books, and library for use in the family. 3. Seat or pew in church. 
4. Lot in burying-ground. 5. Necessary wearing apparel, beds, bedding, and 
bedsteads necessary for the family, all stoves and apparatus, not exceeding 
four, cooking utensils and other household furniture not enumerated, not 
exceeding one hundred dollars in value. 6. One cow, three hogs, and all 
pigs under six months, and if the debtor be actually engaged in agriculture, 
one yoke of oxen, or in lieu thereof one pair of horses, ten sheep, and the 
wool therefrom, manufactured or not, necessary food for stock for three 
months, one wagon, cart, or dray, two plows, and one drag, necessary gear, and 
farming implements, not exceeding fifty dollars in value. 7. Provisions and 
47 


738 ABSTRACT OF THE COLLECTION OF DEBTS. 

fuel for six months. 8. Tools, instruments of a mechanic or miner, or other 
person used for carrying on his trade or business, library and implements of 
a professional man. 

NEVADA. — Actions. There is only one form of action, which is pros¬ 
ecuted by the real party in interest, and is begun in the district court by filing 
a complaint with the clerk, and issuing a summons thereon. The defendant 
may appear voluntarily, when he waives notice of the summons. 

Arrest. Defendant may be arrested and held to bail, I. In an action for 
the recovery of money, or damages in an action on contract, where he is 
about to leave the State with intent to defraud his creditors, or where the 
action is for libel or slander. 2. In an action for a fine or penalty, or for 
embezzlement, or fraudulent misappropriation of money by a public officer 
of a corporation, or an attorney, agent, broker, etc., or any other person in a 
fiduciary capacity, or misconduct in office or professional employment. 3. 
In an action to recover property unjustly detained, where the property has 
been removed or concealed. 4. Where the defendant fraudulently contracted 
the debt. 5. Where the defendant has or is about to dispose of his property 
fraudulently. Plaintiff must make affidavit of one of the above grounds, and 
give security for damages and costs, or the security for which has become 
worthless by act of defendant. 

Attachment may be had at any time— 1. In an action of contract for 
the direct payment of money made or payable in Nevada, and not secured. 
2. In an action of contract against a non-resident, on an affidavit filed with 
the clerk of the court, stating one of the grounds mentioned, that the sum 
for which attachment is asked is a bona fide debt and that attachment is not 
sought nor action prosecuted to hinder or delay creditors, and in giving 
security to defendant. 

Garnishment. Debts and credits of the defendant in the hands of 
third parties may be attached on original process; and on receiving informa¬ 
tion from the plaintiff the sheriff may summon them to appear. 

Judgment is a lien in the county where it was rendered from the time 
of docketing, and in other counties from date of filing a transcript, the 
lien continues for two years. The legal rate of interest on judgments is ten 
per cent., but parties may stipulate for any rate by contract, which is fol¬ 
lowed in the judgment. 

There is no stay of execution except on appeal. 

Exemptions, i. Chairs, tables, desks, and books to the value of one 
hundred dollars. 2. Necessary household, table, and kitchen furniture, 
including stove and stove utensils, wearing apparel, beds, bedding, and bed¬ 
steads, provisions and firewood for one month. 3. Farm utensils, also two 
oxen, or horses, or mules and their harnesses, two cows, one cart or wagon, 
and food for stock for one month, seed grain, or vegetables for planting or 
sowing within six months, to the value of two hundred dollars. 4 . Tools 
and implements of mechanic or artisan necessary to his trade, and instru¬ 
ments and chests of a surgeon, physician, surveyor, or dentist, necessary 
for their profession, with their scientific or professional libraries, and library 


ABSTRACT OF THE COLLECTION OF DEBTS. 


739 

of an attorney or clergyman. 5. Cabin of a miner not exceeding five hun¬ 
dred dollars in value, also all mining apparatus and tools to the value of 
five hundred dollars, and two horses, mules, or oxen, and their harness, and 
food for stock for one month. 6. Two oxen, horses, or mules, and their har¬ 
ness, and cart by which a carter or teamster, etc., earns his living, one horse, 
vehicle, and harness necessary for a physician or clergyman, and food for 
one month. 7. Sewing-machine to the value of one hundred and fifty dollars 
and in actual use. 8. Fire engines and apparatus, etc. 9. Arms and 
accoutrements of a militia-man. 10. A homestead not exceeding in value 
five thousand dollars. 

NEW HAMPSHIRE. — Actions are begun by writ of summons, attach¬ 
ment, or capias, trustee process, or replevin, in forms which are prescribed by 
statute. 

Attachment. All property not exempt from being taken on execution 
may be attached, of right, without an affidavit, and the lien continues for 
thirty days after judgment. 

Arrest. The defendant may be arrested on an action of contract if the 
debt or damage, exclusive of all costs, amounts to thirteen dollars and thirty- 
three cents, on an affidavit made before a justice of the peace that the 
affiant believes that the defendant is justly indebted to the plaintiff, and that 
he conceals his property so that no attachment can be made, or that he has 
good reason to believe that he is going to leave the State to avoid payment 
of his debts. No woman, sheriff, or voter on election day is liable to arrest. 

Garnishment, called Trustee Process. All actions except replevin, 
trespass to the person, and defamation and malicious prosecution, may be 
begun by trustee process. It is in the form of an attachment and summons, 
and the names of other parties may be inserted in the writ as trustees, at 
any time before service on the defendant. 

Judgment is not a lien. (See Attachment.) There is no stay of 
execution. 

Exemptions, i. Wearing apparel necessary for the debtor and his 
family. 2. Comfortable beds, bedding, and bedsteads for himself and his 
family. 3. Furniture to the value of one hundred dollars. 4. Bibles, school¬ 
books, and library to the value of two hundred dollars. 5. One cow. 6. 
One hog, one pig, and the pork of the same when slaughtered. 7. Tools of 
his occupation not exceeding one hundred dollars in value. 8. Six sheep 
and their fleeces. 9. Cooking-stove and necessary furniture for the same. 
10. Provisions and fuel to the value of fifty dollars. 11. Uniform and 
accoutrements of a militia man. 12. Pew in a church. 11. A lot in a bury- 
ing-ground. 14. One sewing-machine. 15. Beasts of the plow not exceeding 
one yoke of oxen or a horse, and hay not exceeding four tons. 16. Domestic 
fowls not exceeding in value fifty dollars. Also a homestead of the head of 
a family not exceeding in value five hundred dollars. 

NEW JERSEY. — Actions under the provisions of the common law, as 
modified by statute, are begun by writs of summons, capias, or warrant, 
attachment, etc. 


740 


ABSTRACT OF THE COLLECTION OF DEBTS . 


Arrest. A writ of capias issues on an affidavit before a Judge of the 
Supreme Court or a Supreme Court Commissioner, specifying the nature 
and particulars of the debt, and one or more of the following causes : i. That 
the defendant is about to remove any property out of the jurisdiction of the 
court with intent to defraud creditors. 2. That the defendant has property 
or rights which he fraudulently conceals. 3. That he has, or is about to 
assign, remove, or dispose of his property with intent to defraud his creditors. 

4. Or that the debt was fraudulently contracted. 

Attachment. A writ may issue on affidavit on behalf of the creditor 
that the defendant has absconded, and is not, to his belief, a resident of the 
State, or against a defendant living out of the State. 

Garnishment is allowed. 

Judgment is a lien on real estate from the time of entry of judgment 
and remains a lien for the period of limitation, twenty years, and bears 
interest at six per cent. 

Stay Laws. Stay of execution is allowed only in justices’ courts, 
where defendant appears on the day judgment is given and gives a bond 
with surety,— on sums not exceeding fifteen dollars, one month; between 
fifteen and sixty dollars, three months; and over sixty dollars, six months. 

Exemptions. Goods and chattels of every kind (not including wearing 
apparel) to the value of two hundred dollars, and wearing apparel of the 
debtor having a family. Also the lot and building owned and occupied by 
the debtor, if he is head of a family, to the value of one thousand dollars, pro¬ 
vided the necessary steps required by statute to secure the same have been 
taken. 

NEW MEXICO. — Actions at law must be commenced by filing a 
declaration — the subsequent proceedings are substantially the same as at 
common law. 

Arrest. Defendant may be arrested on writ of capias when about to 
abscond from the Territory so as to endanger the collection of a debt due 
against him, and may be discharged on giving security to abide the judg¬ 
ment. Defendant may also be arrested when the sheriff on execution can 
find no property belonging to him, and may be discharged at the expiration 
of five days, on delivering to the sheriff a schedule of his property, made 
under oath. 

Attachment may issue on claims amounting to more than fifty dollars, 
in the following cases: 1. When the debtor is a non-resident. 2. Or has 
concealed himself, or absconded, or absented himself from his usual place 
of abode in the Territory, so that ordinary process of law cannot be served 
upon him. 3. Or is about to remove his property from the Territory, or has 
fraudulently concealed or disposed of the same, so as to hinder, delay, or 
defraud his creditors. 4. Or is about to fraudulently convey or assign, con¬ 
ceal or dispose of his property, to hinder, delay, or defraud his creditors. 

5. When the debt was contracted out of the Territory, and the debtor has 
absconded or secretly removed his property or effects into the Territory 
with like intent. 6. When the defendant is a corporation whose principal 


ABSTRACT OF THE COLLECTION OF DEBTS. 


741 


office or place of business is out of the Territory, unless it has a designated 
agent within the Territory, on whom service of process may be made. 
7. When defendant has fraudulently contracted the debt, incurred the obli¬ 
gation, or obtained credit from the plaintiff by false pretenses. Attachment 
may issue on a claim not yet matured. 

Plaintiff must file an affidavit setting forth that defendant is justly 
indebted to him after allowing all just off-sets, and one of the above causes 
of attachment, and give security for costs and damages. 

Garnishment. The sheriff is authorized, upon the request of the 
plaintiff, when a writ of attachment or execution is placed in his hands, to 
serve notice of garnishment on any person having property or credits of the 
defendant in his possession. 

Judgments of the district courts for the counties of Santa Fe, Bernalillo, 
and Doha Ana, are liens on real estate in the county where the judgment is 
entered, from the date of rendition. Judgments rendered in other counties 
become liens upon filing a certified copy of the docket of the judgment in 
the office of the clerk of the probate court of the county in which the real 
estate is situated. 

Stay Law. There is no stay of execution except in case of appeal. 

Exemptions. Real estate to the value of one thousand dollars, in favor 
of heads of families actually residing on the same; also the clothing, beds, 
and bedding necessary for the use of the family, and firewood for thirty 
days; all Bibles, hymn-books, Testaments, school-books used by the family, 
and family and religious pictures, provisions to the amount of twenty-five 
dollars, and kitchen furniture to the value of ten dollars, to be selected by 
the debtor. Also all tools and implements belonging to the debtor neces¬ 
sary to enable him to carry on his trade or business, whether agricultural or 
mechanical, to be selected by him, and not to exceed twenty dollars in value. 

Real estate, when sold, must be appraised by two freeholders of the 
vicinity, and must bring two-thirds of the appraised value. 

NEW YORK. —Actions are begun by the service of a summons, speci¬ 
fying the names of all parties, on the defendant personally, if within the 
State. 

Arrest. The defendant may be arrested on mesne process. 1. To 
recover a fine or penalty. 2. Or damages for a personal injury or an injury 
to property, including the taking, detaining, or conversion of the same, breach 
of promise to marry, misconduct or negligence in an official or professional 
employment, fraud, and deceit. 3. To recover property owned or held by 
the State or some department thereof, which defendant has wrongfully 
obtained or to recover damages therefor. 4. To recover a chattel, con¬ 
cealed or disposed of in order to prevent the plaintiff from obtaining the 
same. 5. To recover on a contract other than a promise of marriage, when 
the defendant has been guilty of fraud in contracting the debt, or has, or is 
about to dispose of his property with intent to defraud his creditors. 6. To 


ABSTRACT OB THE COLLECTION OF DEBTS. 


742 

recover for money or property embezzled or fraudulently misapplied by a 
public officer or other person acting in a fiduciary capacity. 7. An order 
of arrest may also be granted against a non-resident or a resident about to 
depart from the State in an action wherein the judgment demanded requires 
the performance of some act the failure to perform which would be a con¬ 
tempt of court. A woman can be arrested only in the case last mentioned, 
or in an action for willful injury to person, character, or property. 

Attachment may issue where the complaint demands judgment for a 
sum of money only, as damages for one of the following causes: 1. For 
breach of contract other than a promise to marry. 2. For wrongful con¬ 
version of personal property. 3. For any other injury to personal property 
in consequence of fraud, negligence, or other misconduct, on an affidavit show¬ 
ing sufficient cause as above, and that defendant is a foreign corporation or 
non-resident, or that he has departed from the State with intent to defraud 
creditors, or to avoid service, or keeps himself concealed with like intent, or 
has or is about to remove his property from the State with intent to defraud 
creditors, or has or is about to assign or dispose of his property with like 
intent. 

Attachments may also issue when defendant has misappropriated or 
aided, and abetted in the misappropriation of the property of the State or 
any portion or department thereof. Except in this last case plaintiff must 
give security for costs and damages. 

Judgment for an amount exceeding twenty-five dollars, is a lien on 
the real estate of defendant from the time of docketing in the county where 
the land is situate, and remains a lien for ten years. There is no stay of 
execution except in cases of appeal. 

Exemptions. Of a householder: 1. Spinning-wheels, weaving-looms, 

and stoves put up and for use in the dwelling-house, and one sewing machine 
and appurtenances. 2. Family Bible, family pictures, school-books, and 
other books not exceeding fifty dollars in value. 3. Seat or pew in Church. 
4. Ten sheep and their fleeces, and yarn or cloth manufactured therefrom, 
one cow, two swine, necessary food for animals and for the household, and 
fuel, oil, and candles for sixty days. 5. Wearing apparel, beds, bedding and 
bedsteads necessary for the family, necessary cooking utensils, one table, 
six chairs, six knives and forks and spoons, six plates, six teacups and 
saucers, one sugar dish, milk pot, teapot, crane and appendages, pair of and¬ 
irons, coal-scuttle, shovel, pair of tongs, lamp, and candlestick. 6. Tools 
and implements of a mechanic and necessary for carrying on his trade not 
exceeding twenty-five dollars in value. In addition, when debtor is a house¬ 
holder, or has a family for whom he provides, necessary household furniture, 
working tools and team, professional instruments, furniture and library, not 
exceeding two hundred and fifty dollars in value, together with necessary 
food for the team for ninety days, are exempt except in actions for wages by 
domestic servants or for purchase money of some article exempt. A bury- 
ing-ground actually occupied and not exceeding a quarter of an acre. Home¬ 
stead of a householder having a family, owned and occupied by him, to the 
value of one thousand dollars, provided it is recorded as homestead property 
in the office of the clerk of the county where it is situated, but it is not 
exempt in suits for taxes, purchase money or debts contracted before record. 


ABSTRACT OF THE COLLECTION OF DEBTS. 743 

NORTH CAROLINA. — Actions. The distinctions between law and 
equity and the forms of actions are abolished, and there is but one form of 
action, which is begun by issuing a summons from the clerk of the court, 
and which is prosecuted in the name of the real party in jnterest, except in 
case of executors, etc. 

Arrest. Defendant may be arrested and held to bail in an action of 
contract where the defendant is a non-resident or is about to remove from 
the State; and in an action for damages not on contract, for injury to the 
person or character, or for the wrong-taking, detaining, or converting of 
property. 2. In an action for a fine or penalty, or for money received, or 
property embezzled, or fraudulently misappropriated by a public officer, 
attorney, solicitor, officer of a corporation, factor, agent, or broker, or for 
misconduct or negligence in office or professional employment. 3. In an 
action to recover personal property unjustly detained and concealed so that 
the sheriff cannot find it. 4. Where the debt was fraudulently contracted, 
or where defendant fraudulently conceals or disposes of the property for 
which action is brought, or when the action is for damages for fraud or 
deceit. 5. Where defendant has removed or disposed of his property, or is 
about to do so, with intent to defraud creditors. Plaintiff must make affida¬ 
vit of the cause of action, and showing one of the above grounds, and give 
security to defendant. 

Attachment is allowed at the time of issuing summons, or at any time 
thereafter, in an action on contract for the recovery of money only, or in an 
action for the wrongful conversion of personal property, or any injury to 
personal property through negligence, fraud, or other wrongful act, against 
a foreign corporation or a non-resident, or against a defendant absconding 
or concealing himself, or who is about to remove his property from the 
State, or who has assigned, secreted, or disposed of his property, or is about 
to do so, with intent to defraud creditors, on an affidavit specifying the cause 
of action, the amount, grounds, and one of the above reasons, and giving 
security for damages and costs. 

Garnishment. There is no distinctive process of garnishment; it is 
only allowable by original attachment. 

Judgment is a lien on real estate in every county from the time of dock¬ 
eting or filing a transcript thereof, and remains a lien for ten years; bears 
interest at six per cent., or at a rate not exceeding eight per cent., if specified 
in the agreement sued upon. 

Stay Laws. Stay of execution is allowed on judgments in justices’ 
courts, as follows: On sums not exceeding twenty-five dollars, one month; 
between twenty-five and fifty dollars, three months; between fifty and one 
hundred dollars, four months; over one hundred dollars, six months. De¬ 
fendant must give bond with surety. 

Exemptions. Homestead occupied by the debtor to the value of one 
thousand dollars; also personal property, to be selected by the debtor, to 
the value of five hundred dollars. 


744 


ABSTRACT OF THE COLLECTION OF DEBTS . 


OHIO. — Actions. All distinctions are abolished; must be prosecuted 
in the name of the real party in interest, except in case of executors, etc., 
and are begun by filing with the clerk of the court a petition and a precipe, 
stating the names of the parties and demanding a summons thereon. 

Arrest. Defendant may be arrested on affidavit made before any judge, 
clerk of the court, or justice of the peace, stating the nature and amount of 
the claim, that it is just, and one of the following grounds: i. That the 
defendant has removed, or is about to remove, his property out of the juris¬ 
diction of the court with intent to defraud creditors. 2. That he has begun 
to convert his property into money with intent to place it beyond the reach 
of his creditors. 3. That he has property or rights that he fraudulently 
conceals. 4. That he has assigned, removed, or disposed of his property, 
or has begun to do so, with intent to defraud creditors. 5. That the debt 
was fraudulently contracted. 6. That the money or thing for which recovery 
is sought was lost by gaming or by a wager. The affidavit must also state 
the facts claimed to justify belief in the ground alleged, and the order may 
issue at any time before judgment. Plaintiff must also give security for 
damages. 

Officers and soldiers in the revolutionary war, and all females, are privi¬ 
leged from arrest or imprisonment on all process, mesne or final, for any 
debt or demand founded on contract. 

Attachment is granted on an affidavit stating the nature, amount, and 
justice of the cause, and one of the following causes : 1. That the defendant 
is a foreign corporation or a non-resident. 2. Or has absconded with intent 
to defraud creditors. 3. Has left the county of his residence to avoid ser¬ 
vice of the summons. 4. So conceals himself that service cannot be had 
on him. 5. Is about to remove his property beyond the jurisdiction of the 
court, to defraud his creditors. 6. Is about to convert his property into 
money to place it beyond the reach of his creditors. 7. That he has prop¬ 
erty or rights of action which he conceals. 8. Has assigned or removed, or 
is about to assign or remove, his property with intent to defraud creditors. 
9. That the debt was fraudulently or criminally contracted. But attachment 
is not to issue on the ground that the defendant is a foreign corporation or 
non-resident, for any claim other than a debt or demand arising on a con¬ 
tract, judgment, or decree, or for causing death by a negligent or wrongful 
act. Security must be given, unless defendant is a foreign corporation or 
non-resident. 

Garnishment. If the plaintiff, or some one on his behalf, shall make 
oath in writing that any person or corporation named has any property of 
the defendant (describing it), such person or corporation may be summoned 
as garnishee. 

Judgment is a lien on real estate within the county where rendered, 
from the first day of the term, except judgments by confession, and those 
rendered at term when action is commenced, which bind from the date when 
they are rendered; in other counties from date of filing transcript. All 
other lands and goods and chattels are bound from the date of seizure on 


ABSTRACT OF THE COLLECTION OF DEBTS. 745 

execution. Lien continues for five years, but execution must issue on the 
judgment within one year, or the lien is lost, as against any other judgment 
creditor. Judgment bears interest at the same rate as the contract on which 
it was rendered. 

Stay Laws. Stay of execution is allowed only in justices’ courts on 
giving bond with surety within ten days after judgment was given, as follows: 
On sums not exceeding five dollars, sixty days; between five and twenty 
dollars, ninety days; between twenty and fifty dollars, one hundred and fifty 
days; of fifty dollars and over, two hundred and forty days. 

Exemptions. The homestead of the head of a family to value of one 
thousand dollars, or if he does not own any homestead, he may select per¬ 
sonal or real property to the value of five hundred dollars in addition to the 
amount exempt below, of personal property: 1. Wearing apparel, beds, bed¬ 
ding, and bedsteads necessary for the family, one cooking-stove and pipe, 
and one stove and pipe used for warming, and fuel for sixty days actually 
provided. 2. One cow, or if debtor has no cow, household furniture to the 
value of thirty-five dollars, two swine or their pork, or in lieu thereof, house¬ 
hold property to the value of fifteen dollars, six sheep and the wool and 
cloth therefrom, or household furniture to the value of fifteen dollars, and 
food for such animals, if any, for sixty days. 3. Bible, hymn-books, psalm¬ 
books, testaments, and school-books, and family pictures. 4. Provisions 
actually provided to the value of fifty dollars, and other articles of household 
and kitchen furniture to the value of fifty dollars. 5. One sewing-machine, 
one knitting-machine, tools and implements for trade not exceeding one 
hundred dollars in value. 6. Personal earnings of the debtor or his minor 
children for three months previous to the rendition of judgment, on an 
affidavit that it is necessary for the support of the family. 7. All articles, 
specimens, and cabinets of natural history or science, unless the same are 
used for a show or for making money. 

In addition to the above, to a head of a family who is a drayman, one 
horse, harness, and dray; or who is engaged in agriculture, one horse or 
yoke of cattle, the necessary gear, and one wagon; or, if a person practicing 
medicine, one horse, saddle and bridle, and books, medicines, and instru¬ 
ments not exceeding in value one hundred dollars. 

Of the property of an unmarried woman — wearing apparel to the value 
of one hundred dollars, sewing-machine, knitting-machine, Bible, hymn-book, 
psalm-book, and other books to the value of twenty-five dollars. 

OREGON. — Actions. All distinctions are abolished; there is but one 
form, which is prosecuted in the name of the real party in interest, except in 
case of executors, administrators, etc., and which is begun by filing a com¬ 
plaint with the clerk of the court, and causing at any time a summons to 
issue thereon to be served on the defendant. 

Arrest. Defendant may be arrested at any time before judgment, on 
filing an affidavit with the clerk of the court. 1. In an action for the recovery 
of money, or damages on a contract when the defendant is a non-resident, or 
is about to remove from the State, or when the action is for injuries to the 


746 ABSTRACT OF THE COLLECTION OF DEBTS. 

person or character, or injuries to, or wrong-taking, detaining, or converting 
of property. 2. In an action for a fine or penalty, or on a promise to marry, 
or for money received, or property embezzled or fraudulently misappro¬ 
priated, or converted by a public officer or attorney, or officer of a corpora¬ 
tion, as such, or by a factor, agent, or broker, or for misconduct or neglect 
in office. 3. In an action to recover possession of personal property 
detained, when it is concealed so that it cannot be found by the officer, with 
intent to deprive the plaintiff of the use thereof. 4. Where the debt was 
fraudulently contracted. 5. Where defendant has removed, or disposed of 
his property, or is about to do so, with intent to defraud creditors. 

Attachment. Defendant’s property may be attached at the time of 
issuing the summons, or at any time thereafter, on plaintiff’s filing an affida¬ 
vit showing, 1, that defendant is indebted to him upon a contract for the 
direct payment of money, specifying the amount due above all legal set-offs, 
and that the payment has not been secured by mortgage, etc.; or, 2, that 
defendant is indebted to plaintiff, specifying the amount, and that defendant 
is a non-resident; and 3, that the sum claimed is a bona fide debt, and that 
attachment is not sought and action prosecuted to hinder, delay, or defraud 
creditors. 

Garnishment is allowed on original process by attachment; there is no 
distinctive process. 

Judgment is a lien on real estate in the county where it was rendered, 
from the date of docketing, and in other counties from the filing a transcript 
in such county, and continues as such for ten years, and bears interest at 
eight per cent, unless a different rate was contracted for, when such rate is 
taken, not exceeding ten per cent. 

There is no stay of execution in Oregon. 

Exemptions, i. Books, pictures, and musical instruments to the value 
of seventy-five dollars. 2. Necessary wearing apparel of the d.ebtor to the 
value of one hundred dollars, or if a householder, clothing for each member 
of the family to the value of fifty dollars. 3. Tools, implements, apparatus, 
team, vehicle, harness, or library necessary for the trade, occupation, or 
profession of the debtor to the value of four hundred dollars, and sufficient 
food for the team for sixty days. 4. Of property of a householder, ten 
sheep and one year’s fleece, or the yarn or cloth therefrom, two cows, five 
swine, household goods, furniture, and utensils to the value of three hundred 
dollars, food for animals for three months, and for the family for six months, 
and a seat or pew in church. For each white male citizen above the age of 
sixteen, one gun and one revolver. There is no homestead exemption. 

PENNSYLVANIA. — Actions. Personal actions, except in some 
special cases, are begun by a summons, and the common law prevails. 

Arrest. A writ of capias may issue in actions of tort. No person can 
be arrested in an action to recover money due on a judgment or contract, or 
for damages for the non-performance of a contract except in proceedings, as 
for contempt, to enforce civil remedies; in actions for fines or penalties, for 
breach of promise of marriage, for money collected by a public officer, or 


ABSTRACT OF THE COLLECTION OF DEBTS. 


747 

for misconduct or neglect in office. But after bringing suit, before or after 
judgment, defendant may be arrested, on affidavit that he is about to remove 
his property beyond the jurisdiction of the court to defraud creditors, or has 
done so, or that he has property fraudulently concealed, or rights of action 
or interest in public or corporate stocks, which he refuses to apply to the 
payment of his debts, or that he fraudulently contracted the debt, or is about 
to quit the State without leaving sufficient property to satisfy the demand. 
In these cases affidavit must be made of the necessary facts. 

Attachment. Property of the defendant may be attached, if the plain¬ 
tiff makes affidavit that the defendant is justly indebted to him in a sum 
exceeding one hundred dollars, stating the nature and amount of the claim, 
and that defendant is about to remove his property out of the jurisdiction of 
the court, with intent to defraud creditors, or that he has property or rights 
that he fraudulently conceals, or that he has assigned, disposed of, or con¬ 
cealed his property, or is about to do so, with intent to defraud creditors, or 
that he fraudulently contracted the debt. The property of non-residents 
may be attached without affidavit, except in actions ex delictu. Plaintiff 
must give security. 

Garnishment. Attachment may issue after judgment, on the property 
or debts due the defendant in the hands of third parties, and garnishee may 
be Summoned in. 

Judgment bears interest at six per cent., and is a lien on real estate in 
the county where rendered. It may be transferred to other counties and 
continues a lien for five years, but after that may be revived by scire facias. 

Stay Laws. Stay of execution is allowed on judgments in actions of 
contract, by giving bond with surety, or offering sufficient unincumbered 
real estate, as follows: On sums not exceeding two hundred dollars, six 
months; between two hundred and five hundred dollars, nine months; over 
five hundred dollars, one year. In justices’ courts, as follows : On sums not 
exceeding twenty dollars, three months; between twenty and sixty dollars, 
six months; over sixty dollars, nine months. There is no stay on judgments 
for one hundred dollars or less, for wages of manual labor. 

Exemptions. Property to the value of three hundred dollars, exclusive 
of wearing apparel of the defendant and his family, and all Bibles and school¬ 
books in use in the family, and nothing more. There is no homestead 
exemption. 

RHODE ISLAND. — Actions are begun by original writ of summons, 
arrest, or attachment. The common law, as modified by statute, prevails. 

Arrest. Writ of arrest may issue, i. To recover debts which accrued 
before July I, 1870. 2. In actions on penal statutes or of tort. 3. In any 

action of contract, on affidavit to be annexed to the writ, that the claim is 
just and that the plaintiff expects to recover enough to give the court juris¬ 
diction ; and also, either that defendant is about to leave the State without 
leaving sufficient property to be taken on execution, or that the defendant 
committed fraud in contracting the debt or in concealing or disposing of his 
property. Plaintiff, after commencement of the action, may sue out the writ 


748 ABSTRACT OF THE COLLECTION OF DEBTS. 

to arrest at any time before judgment, by making a similar affidavit. No 
bond is required. 

Attachment. Writ of attachment issues against property of the 
defendant and personal property in the hands of third parties, as trustees, 
or an affidavit by the plaintiff that he has a good cause of action and 
expectation of recovering enough to give jurisdiction to the court, and either 
that defendant is a foreign corporation, or non-resident, or is out of the 
State, not to return in time to be served with process, or that he committed 
fraud in contracting the debt, or in concealing or disposing of his property, 
or that since contracting the debt the defendant has had property which he 
refuses to apply to the payment of the debt. 

Garnishment issues by original writ of attachment against personal 
property of the defendant in the hands of a third party. (See Attach¬ 
ment.) 

Judgment is not a lien on real estate. It bears interest at six per cent. 
There is no stay of execution. 

Exemptions, i. Wearing apparel of the defendant and his family, if 
he has one. 2. Working tools of the debtor necessary to his occupation to 
the value of two hundred dollars. 3. Household furniture and stores of a 
housekeeper, including beds and bedding, not exceeding three hundred 
dollars in value. 4. Bible, school, and other books in use in his family. 
5. One cow, and one and a half tons of hay of a housekeeper. 6. One hog, 
one pig, and pork of the same, of a housekeeper. 7. Uniform and accoutre¬ 
ments of a militia man. 8. Pew in church. 9. Lot in burying-ground. 10. 
Mariners’ wages until after the termination of the voyage on which they 
were earned. 11. Debts secured by bills of exchange or negotiable promis¬ 
sory notes. 12. Salary or wages to the amount of ten dollars, when the 
cause of action is not for necessaries. There is no homestead exemption. 

SOUTH CAROLINA. — Actions. All distinctions between actions are 
abolished, and there is but one form for all civil actions, prosecuted in the 
name of the real party in interest, except in case of executors, administra¬ 
tors, etc., and begun by the service of a summons. 

Arrest. Defendant may be arrested on affidavit on the part of the 
plaintiff. 1. In an action for money received or property embezzled or 
fraudulently misappropriated by a public officer or an attorney, or officer or 
agent of a corporation, as such, or factor, agent, or broker, or for any mis¬ 
conduct or neglect in official or professional employment. 2. In an action 
to recover possession of personal property wrongfully detained, when the 
property is so removed that it cannot be found by the sheriff, and removed 
with intent to deprive plaintiff of possession of the same. 3. Where the 
defendant was guilty of fraud in contracting the debt, or in concealing or 
disposing of the property sued for, or where the action is for damages for 
fraud or deceit. 4. Where the defendant has removed or disposed of his 
property, or is about to do so, with intent to defraud creditors. Suit may be 
brought on a note, etc., not yet due, and arrest made on affidavit by plaintiff 


ABSTRACT OR THE COLLECTION OF DEBTS. 


749 

that defendant, being a resident of the State, is about to abscond or depart 
from the State, and that plaintiff had no knowledge of his intention to leave 
the State when he took the note. 

Attachment may issue in an action of contract to recover money only, 
or damages for the wrongful conversion or detention of property or for 
injuries to person or property where the defendant is a foreign corporation 
or a non-resident, or has absconded or concealed himself, or is about to 
remove his property from the State, or has assigned, disposed of, or secreted 
his property, or is about to do so, with intent to defraud creditors, on an affi¬ 
davit stating one of the above grounds, and giving security to defendant. 
Attachment will lie for a debt not due if fraud be shown in evading the 
debt. 

Garnishment is affected only by attachment. 

Judgment is a lien on real property for ten years; and judgments for 
money bear interest at seven per cent. 

There is no stay of execution. 

Exemptions. Homestead of the head of a family not exceeding in 
value one thousand dollars; personal property, furniture, beds, bedding, 
family library, arms, carts, wagons, farming implements, tools, cattle, work 
animals, swine, goats, and sheep, not to exceed in value five hundred dollars, 
and all necessary wearing apparel. 

TENNESSEE. — Actions. There is only one form for all actions 
which are begun by a summons issued by the clerk of the court and 
directed to the sheriff. 

Arrest. There is no arrest for debt in Tennessee. 

Attachment may be had at the commencement of the action for a 
debt or demand due or after action begun, either before or after judgment, 
for any cause, where, I, the debtor is anon-resident; 2, or is about to remove 
himself or his property out of the State; 3, or has removed out of the 
county of his residence privately, or is about to do so; 4, or has concealed 
himself so that process cannot be served on him; 5, has absconded or con¬ 
cealed himself or his property; 6, has fraudulently disposed of his property, 
or is about to do so; 7, where any person liable for a debt, and a non-resident, 
dies leaving property within the State; 8, where defendant is a resident of 
the county, but summons is returned “ not found in the county.” The plain¬ 
tiff or his agent must make an oath in writing of the nature and amount of 
the debt, and one of the above causes, and give security to the defendant. 

Garnishment. Where property, choses in action, or effects of the de¬ 
fendant are in the hands of a third party, or such party is indebted to the 
defendant, attachment may issue by garnishment. Also on execution, where 
the sheriff cannot find sufficient property to satisfy the execution. 

Judgment is a lien on real estate, in the county where rendered, from 
the date of rendition, and in other counties from the date of registration of 
a certified copy; but the lien is lost unless execution is taken out and the 
land sold within twelve months after rendition. Judgment bears interest at 
six per cent. 


ABSTRACT OF THE COLLECTION OF DEBTS. 


750 

Stay of Execution. — On judgments before a justice of the peace 
execution will be stayed for eight months on giving security for debt, inter¬ 
est, and costs. • 

Exemptions. Thirty dollars, wages of a mechanic or laboring man, if 
the same are due. Personal property of the head of a family, two beds, 
bedsteads, and bedding, and for every three children one additional bed, 
etc.; all not to exceed twenty-five dollars in value; two cows and calves, 
and if the family consists of six persons or more, three cows and calves; 
one dozen knives and forks, one dozen plates, six dishes, set of table¬ 
spoons, set of teaspoons, tray, two pitchers, waiter, one coffee-pot, one tea¬ 
pot, canister, cream-jug, one dozen cups and saucers, one dining-table, and 
two table cloths, one dozen chairs, one bureau, not to exceed forty dollars in 
value, one safe or press, one wash-basin, one bowl and pitcher, one washing- 
kettle, two washing-tubs, one churn, one looking glass, one chopping-axe, 
one spinning-wheel, one loom and gear, one pair cotton-cards, one pair wool- 
cards, one cooking-stove and utensils, one set ordinary cooking utensils, 
one meal-sieve, one wheat-sieve, one cradle, Bible and hymn-book, and all 
school-books, two horses or two mules, or one horse and one mule, or one 
horse or mule, and one yoke of oxen and gear, one two-horse or one horse 
wagon to the value of seventy-five dollars, and the harness, one man’s saddle, 
one woman’s saddle, two riding-bridles, twenty-five bushels of corn, twenty 
bushels of wheat, five hundred bundles of oats, five hundred bundles fodder, 
one stack of hay to the value of twenty-five dollars ; if the family is less than 
six persons, one thousand pounds of pork slaughtered or on foot, or six 
hundred pounds of bacon; or if the family consists of more than six per¬ 
sons, twelve hundred pounds of pork, or nine hundred pounds of bacon, all 
poultry to the value of twenty-five dollars, fifty sheep and the fleeces from 
the same, twenty-five stands of bees and the products of the same; six cords 
of wood or one hundred bushels of coal, one sewing machine, one hundred 
gallons of sorghum molasses, one hundred pounds of soap, fifty pounds of 
lard, one hundred pounds of flour, fifty pounds of salt, one hundred pounds 
of beef or mutton, twenty pounds of coffee, fifty pounds of sugar, three 
bushels of meal, one bushel of dried beans, one bushel dried peas, fifty 
bushels of Irish potatoes, fifty bushels of sweet potatoes, ten bushels of 
turnips, one pair of andirons, one clock, one pound each of pepper, spice, 
and ginger, canned fruit put up for the family not exceeding twenty dollars 
in value, twenty bushels of pea-nuts, three strings of red peppers, four 
gourds, carpet in use, not exceeding twenty-five dollars in value, and two 
hundred bushels of cotton seed. If the head of the family is engaged in 
agriculture, two plows, two hoes, one grubbing-hoe, one cutting-knife, one 
harvest-cradle, plow-gears, one pitchfork, one rake, three iron wedges, five 
head of sheep, ten stock hogs. Also the tools of a mechanic, and if he be 
the head of a family, two hundred dollars’ worth of lumber or material or 
products of his labor. One gun to every male person, and to every female 
who is the head of a family. To a head of a family, fifty pounds of picked 
cotton, twenty-five pounds wool, leather for winter shoes; also three hundred 


J 


ABSTRACT OF THE COLLECTION OF DEBTS. 751 

pounds of tobacco in the hands of the producer. A homestead of the head 
of a family of the value of one thousand dollars. 

TEXAS. — Actions are begun by petition filed with the clerk of the 
court upon which a citation issues to the defendant. 

Arrest for debt is abolished. 

Attachments may issue upon an affidavit by the plaintiff or his attorney, 
stating that the debt is a just one, and the amount of the same, together with 
one of the following grounds : 1. That defendant is a non-resident or a for¬ 
eign corporation. 2. That he is about to remove out of the State, and has 
refused to pay or secure plaintiffs claim. 3. Or that he secretes himself, so 
that process cannot be served on him. 4. That he has secreted his property 
for the purpose of defrauding creditors, or is about to do so. 5. That he is 
about to remove his property out of the State, without leaving sufficient 
remaining for the payment of his debts 6. That he is about to remove his 
property beyond the jurisdiction of the court, with intent to defraud creditors. 
7. That he is about to transfer or secrete his property, or has done so, with 
intent to defraud creditors. 8. That he is about to convert his property into 
money, for the purpose of defrauding creditors. 9. That the debt is due for 
property obtained under false pretences. And he must also swear that the 
attachment is not sued out for the purpose of injuring the defendant, and 
that the original petition is true, and give security to defendant. 

Garnishment may issue after suit brought on affidavit of plaintiff that 
the amount claimed is just, due, and unpaid; that he does not know of any 
property of defendant not exempt, sufficient to satisfy the claim, and that he 
believes that any parties (naming them), are indebted to the defendant, or 
have property or effects of the defendant; also, where judgment has been 
rendered, or attachment sued out on affidavit. 

Judgment is a lien on real estate in the county where it was rendered, 
and in other counties it becomes such by filing a transcript. The lien con¬ 
tinues for ten years, but unless execution issues within twelve months it 
ceases to bind the property. 

Stay Laws. Stay of execution is allowed only in justices’ courts for 
three months, on giving bond with good security. 

Exemptions. A homestead of two hundred acres not in any town or 
city, or a lot, or lots, in a city, town, or village, not to exceed five thousand 
dollars in value. Also to every head of a family, all household and kitchen 
furniture, all implements of husbandry, tools or apparatus of trade or pro¬ 
fession, books of private or public library, five milch cows and calves, two 
yoke of oxen, two horses and one wagon, one carriage or buggy, one gun, 
twenty hogs, twenty head of sheep, all provisions and forage for home use, 
bridles, saddles, and harness necessary for the use of the family, and lot in a 
cemetery; to every person not the head of a family, a horse, bridle, saddle, 
necessary wearing apparel, tools, apparatus, and books of his private library, 
and burial lot. 

UTAH. — Actions. There is but one form of civil action, which is 
commenced by the filing of a complaint and the issuing of a summons. 


752 ABSTRACT OF THE COLLECTION OF DEBTS. 

Arrest. Defendant may be arrested in the following cases, viz.: In an 
action for recovery of money or damages on a cause of action arising on 
contract, when about to depart from the Territory to avoid creditors, or in 
an action of libel or slander; in an action for fine or penalty, or for money 
or property embezzled or fraudulently misapplied by a public officer, officer 
of a corporation, attorney, factor, broker, agent, or clerk in the course of his 
employment as such, or by any other person acting in a fiduciary capacity, 
or for misconduct or neglect in office or in a professional employment, or for 
willful violation of duty; in an action to recover personal property unjustly 
detained, when the same has been concealed, removed, or disposed of, so 
that it cannot be found by the officer; when the defendant has been guilty 
of fraud in contracting the debt or incurring the obligation on which the 
action is brought, or in concealing or disposing of the property for the 
taking, detention, or conversion of which the action is brought; when the 
defendant has removed or disposed of his property with intent to defraud 
his creditors, or is about to do so. The order of arrest may be issued when 
it is made to appear to the judge, by affidavit of the plaintiff or his attorney? 
or some other person, that a sufficient cause of action exists, that the case is 
one of those above-mentioned, and that one of the foregoing causes for an 
arrest exists. Plaintiff must also file a bond with sureties for damages and 
costs. 

Attachment. Attachment may issue at the commencement of the suit 
or at any time thereafter, on filing with the clerk of the court an affidavit 
showing that defendant is indebted to plaintiff, specifying the amount above 
all legal set-offs, and whether upon a judgment or an express or implied 
contract, and that the same has not been secured by mortgage or pledge, or 
that if originally so secured, that the security has become valueless without 
any act of the plaintiff, that the same is an actual, bona fide, existing demand, 
due and owing from defendant to plaintiff, and that the attachment is not 
sought nor the action prosecuted to hinder, delay, or defraud any creditor, 
and specifying one or more of the following causes: That the defendant is a 
non-resident, or has departed or is about to depart from the Territory to the 
injury of his creditors, or stands in defiance of an officer, or conceals himself 
so that process cannot be served upon him, or has assigned, disposed of, or 
concealed any of his property with intent to defraud his creditors, or is about 
to do so, or has fraudulently contracted the debt or incurred the obligation 
on which the action is brought. Plaintiff must also give security for costs 
and damages. 

Garnishment. Property or debts due to defendant from third persons 
may be garnished. 

Judgments are liens upon real estate owned by the defendant in the 
county, for five years from the time of docketing, and may be made liens in 
any other county from the time of filing a transcript with the recorder. 

Stay Laws. There is no provision for the stay of execution, except by 
appeal. 

Exemptions. Chairs, tables, desks, and books of the value of two 


ABSTRACT OF THE COLLECTION OF DEBTS. 


7 53 

hundred dollars; necessary household furniture, etc., of the value of three 
hundred dollars, paintings made by a member of the family, provisions on 
hand for three months, two cows with their sucking calves, and two hogs 
and all sucking pigs; farming implements of the value'of three hundred 
dollars; two oxen, horses, or mules, and harness, and food for animals for 
sixty days; a cart or wagon; seed, grain, or vegetables, not exceeding in 
value two hundred dollars; tools and implements of a mechanic or artisan, 
not exceeding in value five hundred dollars; the seal and records of a notary 
public; the instruments and chests of a surgeon, physician, surveyor, or 
dentist, with their libraries, and the law libraries and office furniture of 
attorneys and judges, and libraries of ministers; the cabin of a miner, not 
exceeding five hundred dollars in value, and his tools and appliances not 
exceeding in value two hundred dollars; two oxen, horses, or mules and 
harness and vehicle by which a cartman, huckster, teamster, or other laborer 
habitually earns his living; and one horse, harness, and vehicle of a physi¬ 
cian, surgeon, or minister, with feed for the horse for three months; one-half 
the debtor’s earnings for personal services in sixty days, if necessary for the 
support of his family; life insurance policies and benefits where the annual 
premiums do not exceed five hundred dollars; all arms, ammunition, and 
accoutrements required by law to be kept; to the head of a family, a home¬ 
stead to be selected by the debtor, not exceeding one thousand dollars in 
value, and the further sum of five hundred dollars to his wife, and two hun¬ 
dred and fifty dollars for each other member of his family. 

VERMONT. — Actions. The common law is in force, and the old 
actions are in use. Process is by writ of summons or attachment. Writs 
run into any county, and must be served twelve days at least before the 
return day. 

Attachment issues of right on original writ, without affidavit or bond. 
Personal property attached must be taken possession of by the officer. It 
is a lien on personal property for thirty days after judgment, and real prop¬ 
erty for five months from such judgment. 

Arrest. Defendant may be arrested in any action of tort, and in an 
action of contract, or on execution issued in an action of contract, on an 
affidavit that the affiant believes that defendant is about to abscond, and has 
secreted his property to the amount of twenty dollars not exempt. 

Garnishment is called Trustee Process. Actions may be begun by 
trustee process, and any persons having goods, effects, or credits, may be 
summoned and the property attached. Debts and legacies, absolutely due, 
may be so attached, and corporations summoned as trustees. 

Judgments bear interest at six per cent., and are not liens on real prop¬ 
erty. (See Attachment.) There is no stay of execution. 

Exemptions. Suitable apparel, bedding, tools, arms, and articles of 
household furniture necessary for the debtor and his family, one sewing- 
machine, one cow, the best swine, or meat from one swine, .ten sheep, and 
one year’s produce in wool, yarn, or cloth, forage for ten sheep and one cow 
for the winter, ten cords of firewood or five tons of coal, twenty bushels of 
48 


ABSTRACT OF THE COLLECTION OF DEBTS. 


754 

potatoes, military arms and accoutrements of militiamen, all growing crops, 
ten bushels of grain, one barrel of flour, three swarms of bees, and hives and 
produce in honey, two hundred pounds sugar, lettered gravestones, Bibles 
and other books used in the family, one pew in church, live poultry to the 
value of ten dollars, professional books and instruments of physician, pro¬ 
fessional books of an attorney or clergyman to the value of two hundred 
dollars, one yoke of oxen or steers, and forage for the winter, two horses 
kept and used for team work, and such as the debtor may select in lieu of 
one yoke of oxen or steers, but not exceeding two hundred dollars in value, 
and forage for the winter, arms and equipments used by any soldier in the 
service of the United States and kept as mementoes of service, one two- 
horse wagon or one ox cart, one sled or set of traverse sleds, two harnesses, 
two halters, two chains, one plow and one ox yoke which, with the oxen, 
steers, or horses exempted, shall not exceed two hundred and fifty dollars in 
value, also mechanic’s tool chest. A homestead of a housekeeper, or head 
of a family, to the value of five hundred dollars. 

VIRGINIA. — Actions. The common law forms remain, and actions 
are begun by original writ and summons, returnable in ninety days. The 
assignee of a bond or note may sue in his own name. 

Attachment is allowed— i. Against non-resident debtors having prop¬ 
erty in the State. 2. Against an absconding debtor in a suit removing or 
intending to remove his property, etc. 3. Against a debtor who has removed, 
is removing, or intends to remove his property, whether the claim is due 
or not. 4. Against a tenant removing property from leased premises before 
rent is due. 

Arrest. There is no imprisonment for debt, but defendant may be 
arrested and held to answer on an affidavit showing the cause of action, and 
that the defendant is about to quit the State. 

Garnishment is allowed on original attachment against any person hav¬ 
ing goods, effects, or credits of the defendant, or who is indebted to him, and 
also on writ of fieri facias, on suggestion by the judgment creditor that 
there is a lien by such writ of fieri facias on any third party as having prop¬ 
erty of the defendant. 

Judgment is a lien on real estate in the county where rendered from the 
first day of the term when rendered, except in certain cases in the Circuit 
Court in Richmond, and every other county from the time of docketing in 
such county, but it must be docketed within sixty days, or fifteen days prior 
to the purchase of such real estate from the debtor. The lien may always 
be enforced in a court of equity. If it appears to the court that the rents 
and profits of the property subject to the lien will not satisfy the judgment in 
five years, it may order the property, or part of it, to be sold, and apply the 
proceeds to discharge the judgment. Judgments bear interest at six per 
cent. 

Stay of Execution. There is no stay of execution except on appeal, 
and on small claims in the justice courts, in which on security being given 
execution may be stayed for a period not exceeding ninety days. 


ABSTRACT OF THE COLLECTION OF DEBTS. 


755 

Exemptions. To a housekeeper and the head of a family— i. Family 
Bible. 2. Family pictures, school-books and library for family use, to the 
value of one hundred dollars. 3. Seat or pew in church. ^ 4. Lot in a bury¬ 
ing ground. 5. Necessary wearing apparel, beds, bedding, and bedsteads, 
stoves and appendages put up, and necessary for the family, not exceeding 
three. 6. One cow, one horse, six chairs, one table, six knives, forks, and 
plates, one dozen spoons, two dishes, two basins, one pot, one oven, six 
pieces wood or earthen ware, one loom and appurtenances, one safe or press, 
one spinning-wheel, one pair of cards, one axe, two hoes, five barrels corn, 
five bushels wheat, or one barrel of flour, two hundred pounds of pork or 
bacon, three hogs, forage or hay to the value of ten dollars, one cooking- 
stove and utensils, one sewing-machine, mechanics’ tools and utensils, to the 
value of one hundred dollars. If the debtor is engaged in agriculture, one 
yoke of oxen, or pair of horses or mules, with the necessary gearing, one 
wagon or cart, two plows, one drag, one harvest cradle, one pitchfork, one 
rake, two iron wedges. In addition to the above is allowed a homestead of 
real estate or personal property to the value of two thousand dollars. 

WASHINGTON TERRITORY. — Actions. All distinctions in the 
forms of actions are abolished. They must be prosecuted by the real party 
in interest, and are commenced by filing a petition and serving a summons. 

Arrest. Defendant may be arrested by order of court in the following 
cases: in an action for the recovery of damages, on a cause of action not 
arising out of contract, when defendant is a non-resident or is about to 
remove from the Territory, or in an action for injury to person or character, 
or for injuring or wrongfully taking, detaining, or converting personal prop¬ 
erty ; in an action for a fine or penalty or on a promise to marry, or for 
money received or property embezzled or fraudulently misapplied or con¬ 
verted to his own use by a public officer, attorney, an officer or agent of a 
corporation, a factor, agent, broker, or other person acting in a fiduciary 
capacity, or for misconduct or neglect in office or in professional employ¬ 
ment ; in an action to recover the possession of personal property unjustly 
detained, when it has been concealed, removed, or disposed of so that it can¬ 
not be taken by the sheriff; when defendant has been guilty of fraud in con¬ 
tracting the debt or incurring the obligation on which the suit is brought; or 
has removed or disposed of his property, or is about to do so, with intent to 
defraud creditors. When the action is to prevent threatened injury to or 
destruction of property in which plaintiff claims an interest; on final judg¬ 
ment or order of court when defendant having no property subject to execu¬ 
tion has money which he ought to apply in payment but refuses, with intent 
to defraud plaintiff. 

Plaintiff must furnish security for costs and damages. 

Action may be commenced on an agreement in writing not due and 
defendant arrested or his property attached, on plaintiff’s filing an affidavit 
with the clerk that defendant is about to leave the Territory without pro¬ 
viding for the performance of the contract, taking with him property subject 
to execution, with intent to defraud plaintiff. 


756 ABSTRACT OF THE COLLECTION OF DEBTS. 

Attachments may be had at any time on plaintiff’s giving security and 
filing an affidavit that a cause of action exists against the defendant and the 
grounds thereof, and the amount due over and above all counter claims, and 
that the same is not secured or that the security has become valueless 
through no act of the plaintiff. 

Garnishment. After an execution has been returned unsatisfied on 
proof that any person is indebted to the judgment debtor in a sum exceeding 
fifty dollars, such person may be summoned to answer in reference thereto, 
and the debt or other property ordered to be applied to payment of the 
judgment. 

Judgment is a lien on the debtor’s lands from the date of filing in the 
office of the auditor of the county where they are situated and continues for 
five years. 

Stay of Execution is allowed on judgments as follows: in the 
supreme court, on all sums under five hundred dollars, thirty days; on sums 
between five hundred and fifteen hundred dollars, sixty days; on sums over 
fifteen hundred dollars, ninety days. In the district court, on all sums under 
three hundred dollars, two months; between three hundred and one thousand 
dollars, five months; over one thousand dollars, six months. 

Exemptions. To a householder being the head of a family, a home¬ 
stead of the value of one thousand dollars, while occupied by such family. 
All wearing apparel, private libraries, family pictures, and keepsakes. To 
each householder, one bed and bedding, and one additional bed and bedding 
for every two additional members of the family, and other household goods 
of the coin value of one hundred and fifty dollars. Two cows with their 
calves, five swine, two stands of bees, twenty-five domestic fowls, and provis¬ 
ions and fuel for six months. To a farmer, one span of horses and harness 
or two yokes of oxen, and one wagon, with farming utensils not exceeding 
two hundred dollars coin value. To a mechanic, the tools of his trade, and 
material to the value of five hundred dollars. To a physician, his library 
not exceeding five hundred dollars in value, horse and carriage, instruments 
and medicines. To attorneys and clergymen, their libraries not exceeding 
five hundred dollars in value, office furniture, stationery, and fuel. All fire¬ 
arms kept for use, and a canoe, skiff, or small boat not exceeding in value 
fifty dollars. To persons engaged in lightering, one or more lighters or 
scows and a small boat not exceeding the aggregate value of two hundred 
and fifty dollars. To a drayman, his team. To a person engaged in logging, 
three yokes of work oxen and implements of the value of three hundred 
dollars. 

WEST VIRGINIA.— Actions. The old forms of actions and writs 
are preserved, and actions are begun by service of summons returnable in 
ninety days. The assignee of a bond, note, or writing not negotiable, may 
sue in his own name. 

Attachment is allowed in actions for any claim or debt on contract, 
or for damages for any wrong, on an affidavit on behalf of the plaintiff, 
stating the nature and amount of the claim, and, i. That defendant is a 


ABSTRACT OF THE COLLECTION OF DEBTS. 757 

foreign corporation or non-resident. 2. That he has left, or is about to 
leave, the State with intent to defraud creditors. 3. That he so conceals 
himself that service cannot be had on him. 4. That he has removed, or is 
about to remove, his property from the State, with intent to defraud credit¬ 
ors. 5. That he has converted, or is about to convert, his property into 
money with intent to defraud creditors. 6. That he has assigned or disposed 
of his property, or is about to do so, with intent to defraud creditors. 7. 
That he has property or rights which he conceals. 8. That he fraudulently 
contracted the debt. Plaintiff must also give security for damages and 
costs. 

Arrest. Defendant may be arrested and held to bail on an affidavit 
stating the nature and justice of the claim, and the amount, and, 1. That 
defendant has removed, or is about to remove, his property from the State, 
with intent to defraud creditors. 2. That he has converted, or is about to 
convert, his property into money with like intent. 3. Or has assigned, dis¬ 
posed of, or removed his property, or is about to do so, with like intent. 4. 
That he has property or rights in action which he fraudulently conceals. 5. 
That he fraudulently contracted the debt. 6. That he is about to leave the 
State permanently, without paying debt for which suit is brought. 

Plaintiff must also give security for damages and costs. 

Garnishment. In the writ of attachment, the plaintiff may designate 
any third parties as having effects of the defendant in their hands, and such 
parties may be summoned as garnishees. 

Judgments bear interest at six per cent.; are liens on real estate in 
every county from the date of docketing in the county where the land is, and 
the lien continues for ten years, but the judgment must be docketed within 
sixty days from the date of rendition, or before any deed from the debtor to 
a third party is delivered for record. A writ of fieri facias is a lien on per¬ 
sonal property from the time of delivery to the sheriff. 

Stay Law. In justices’ courts, by giving bond with surety, stay of exe¬ 
cution is allowed as follows: Where the judgment, exclusive of interest and 
costs, does not exceed fifty dollars, two months; between fifty and one hun¬ 
dred dollars, five months; over one hundred dollars, six months. 

Exemptions. A homestead of the husband or parent, or of infant chil¬ 
dren of deceased parents, to the value of one thousand dollars, and personal 
property to the value of two hundred dollars. The working tools of a 
mechanic, artisan, or laborer, to the value of fifty dollars, provided the whole 
amount of exemptions does not exceed two hundred dollars. 

WISCONSIN. — Actions. All distinctions have been abolished, and 
there is now but one form, which must be prosecuted in the name of the real 
party in interest, except in case of executors, administrators, and trustees, 
and which is begun by the service of a summons on the defendant, to be 
answered within twenty days. 

Arrest. Defendant may be arrested, 1. In an action to recover damages 
not on contract, where the defendant is a non-resident, or is about to remove 


758 ABSTRACT OF THE COLLECTION OF DEBTS. 

from the State, or where the action is for injury to the person or character, 
or for injury to, or wrong taking, detaining, or converting property, or in an 
action to recover damages for property taken under false pretences. 2. In 
an action for a fine or penalty, or for money received, or property embezzled, 
or fraudulently misapplied by a public officer or attorney, or an officer of a 
corporation as such, or factor, agent, or broker, or for misconduct or neglect 
in official or professional employment. 3. In an action to recover property 
unjustly detained, where it is so concealed that the sheriff cannot find the 
same. 

An affidavit must be made on the part of the plaintiff, stating the cause 
of action, and one of the above causes, and security must be given to 
defendant. 

Attachment is allowed on an affidavit that the defendant is indebted to 
plaintiff, and stating the amount, which must exceed fifty dollars, and that it 
is due on contract, and, 1. That defendant has absconded, or is about to 
abscond, or is concealed to the injury of his creditors. 2. That defendant 
has assigned, disposed, or concealed his property, or is. about to do so, with 
intent to defraud creditors. 3. That the defendant has removed, or is about 
to remove, his property from the State, with intent to defraud creditors. 
4. That the debt was fraudulently contracted. 5. That he is a non-resident. 
6. Or a foreign corporation, or if incorporated in the State, that all the proper 
officers on whom to make service are non-residents or cannot be found. Or 
the affidavit shall state that a cause of action sounding in tort exists for an 
amount exceeding fifty dollars, and that the defendant is not a resident of 
the State, or that his residence is unknown and cannot be ascertained, or 
that defendant is a foreign corporation. Attachment may issue on a demand 
not yet due in any case mentioned in the first four subdivisions. 

Garnishment is allowed on an affidavit on behalf of the creditor, that 
he believes that any third person (naming him), has property, effects, or 
credits of defendant, or is indebted to him, also on execution, on a similar 
affidavit. 

Judgment is a lien on real estate in the county where rendered from the 
date of docketing, and in other counties from the time of filing a transcript, 
and the lien continues for ten years. It bears interest at seven per cent., or 
as high as ten per cent, if stipulated for in the contract. 

Stay Laws. In justices’ courts, on giving bond with surety within five 
days after judgment was rendered, stay of execution is allowed as follows: 
On sums not exceeding ten dollars, exclusive of costs, one month; between 
ten and thirty dollars, two months; between thirty and fifty dollars, three 
months; over fifty dollars, four months. 

Exemptions. A homestead not exceeding forty acres, used for agricul¬ 
ture, and a residence, and not included in a town plat, or a city or village, 
or, instead, one-quarter of an acre in a recorded town plat, city, or village. 
Also, 1. Family Bible. 2. Family pictures, and school-books. 3. Private 
library. 4. Seat or pew in church. 5. Right of burial. 6. Wearing apparel, 
beds, bedsteads, and bedding kept and used in the family, stoves and appur- 


ABSTRACT OF THE COLLECTION OF DEBTS. 759 

tenances put up and used, cooking utensils and household furniture to the 
value of two hundred dollars, one gun, rifle, or fire-arm to the value of fifty 
dollars. 7. Two cows, ten swine, one yoke of oxen, and one horse or mule, 
or in lieu thereof, a span of horses or mules, ten sheep and the wool there¬ 
from, necessary food for exempt stock for one year, provided or growing, or 
both, one wagon, cart, or dray, one sleigh, one plow, one drag, and other 
farm utensils, including tackle for the teams, to the value of two hundred 
dollars. 8. Provisions and fuel for the family for one year. 9. Tools and 
implements, or stock-in-trade of a mechanic or miner, trader, or other person, 
used and kept for carrying on business, not exceeding two hundred dollars 
in value. 10. Money arising from insurance of exempt property destroyed 
by fire. 11. Inventions, for debts against the inventor. 12. Sewing-machine. 
13. Sword, plate, books, or articles presented by Congress, or legislature of 
a State. 14. Printing materials and presses to the value of fifteen hundred 
dollars, but only four hundred dollars is exempt from payment to employees. 

15. Earnings of a married person necessary for family support, for three 
months previous to issuing process, not exceeding sixty dollars per month. 

16. Horse, arms, and equipments of a militiaman. 17. Books, maps, and 
other papers kept or used for the purpose of making abstracts of title to 
land. The proceeds of policy of insurance on the life of a minor, payable to 
parents, are exempt as against their creditors, but not against creditors of 
the minor. 

WYOMING. — Actions. There is but one form of action at law, which 
is commenced by filing a petition and prcecipe on which a summons issues. 

Arrest. Defendant may be arrested in the following cases, on plain¬ 
tiff’s giving security, and filing affidavit: 1. In an action for damages in a 
cause not arising out of contract, where defendant is a non-resident, or is 
about to remove from the Territory, or where the action is for an injury to 
person or character, or for seduction, or criminal conversation, or injuring, 
wrongfully taking, detaining, or converting property; and in actions to 
recover the value of property obtained under false pretences. 2. In an 
action for a fine or penalty, or for money received, or property embezzled or 
fraudulently misapplied by a public officer, or attorney, solicitor, or counsel, 
or officer or agent of a corporation, or bank, or banking association, or by 
any factor, agent, broker, or any other person in a fiduciary capacity, or for 
any misconduct or neglect in office or professional employment. 3. In an 
action to recover possession of property unjustly detained, when the same 
has been concealed or disposed of so that it cannot be taken by the sheriff. 
No female can be arrested, except for willful injury to person, character, or 
property. 

Attachments are granted in a civil action for the recovery of money, 
on plaintiff’s filing an affidavit stating the nature and amount of his claim, 
that it is just, and the existence of one of the following grounds: 1. That 
defendant is a foreign corporation or non-resident. 2. Has absconded with 
intent to defraud creditors. 3. Has left county of residence to avoid service 
of summons. 4. Conceals himself. 5. Is about to remove his property out 


;6o ABSTRACT OF THE COLLECTION OF DEBTS. 

of the jurisdiction of the court, with intent to defraud creditors. 6. Is about 
to convert his property into money to place it beyond reach of creditors. 
7. Has property or rights of action concealed. 8. Has assigned, removed, 
or disposed of his property, or is about to do so, to defraud creditors. 
9. Fraudulently contracted debt sued on. 10. In all cases not exceeding 
two hundred and fifty dollars, in which debt is not otherwise secured, and 
which has not been paid in ten days after demand. 

Bond is required unless defendant is a foreign corporation. 

Attachment may issue on claims not yet due, on affidavit showing exist¬ 
ence of any of above grounds from second to ninth inclusive. 

Garnishment. When plaintiff makes oath in writing that he believes 
that any person or corporation named has property of defendant in his 
possession, describing the same, and the officer cannot get possession of 
such property, such person or persons may be summoned as garnishee. 

Judgment is a lien on real estate in the county where entered, from the 
first day of the term at which judgment is entered, except judgments by 
confession and those rendered at the term action is commenced, which are 
binding only from the day they are rendered. Unless execution is taken 
out and levied within one year, the judgment ceases to be a lien as against 
any other judgment creditor, and unless the execution is taken out within 
five years, the judgment becomes dormant and the lien expires. 

Stay of Execution is allowed in justices’ courts on filing bond, for 
thirty or sixty days, according to amount involved. 

Exemptions. Every householder, the head of a family, is entitled to a 
homestead not exceeding in value fifteen hundred dollars, consisting of 
a house or lot in a town or city, or a farm of not more than one hundred and 
sixty acres of land. The wearing apparel of every person is exempt, and 
the following property owned by any person the head of a family, viz.: the 
family Bible, pictures, and school-books; rights of burial; furniture, bedding, 
provisions, and such other articles as the debtor may select, not to exceed 
in all the value of five hundred dollars. The tools, team, and implements, 
or stock in trade, of a mechanic, miner, or other person, used or kept for 
the purpose of carrying on his trade or business, not exceeding three hun¬ 
dred dollars; the library, instruments, or implements of any professional 
man, not exceeding three hundred dollars. 


LIENS OF MECHANICS AND MATERIAL MEN 761 


CHAPTER XXXVI. 

THE LIENS OF MECHANICS AND MATERIAL MEN FOR THEIR 
WAGES AND MATERIALS. 

In nearly all our States there are now some provisions for 
securing to mechanics, and to persons supplying materials (who 
are called “ material men”), their wages and pay for their mate¬ 
rials, by means of liens , as they are called in law. A lien is a 
hold upon or a valid claim against property. This means that 
every mechanic employed upon a house, and, in most of the 
States, upon a vessel, and in some upon any property whatever, 
as a railroad or canal, either in the construction or repair of it, 
has a lien upon the property on which he has labored or for 
which he has supplied materials, for the amount of his wages 
and the price of his materials. This lien or claim he has for a 
certain time; and during that time he may either sue for his 
wages, and make an attachment of the property, or, in some 
States, file a petition with the proper court; and in either may 
have the property sold to pay his wages, unless the owner 
redeems it. 

The reason of these precautions is obvious enough. The 
purpose of the law is to assist and protect the mechanic, or 
material man, but not to enable him to commit a fraud or do an 
injury to his neighbors. And it would be an injury to a man to 
let him buy a house and pay full price for it, and then tell him 
that the mechanics who built it had a lien (which is much the 
same in effect as a mortgage) upon the house, without his know¬ 
ing anything about it. And it would be an injury to an owner, 
who had contracted with the master-workman to repair or 
change his house at great expense, to settle with this master 
workman in due time, and pay him the full amount of his bill, 
without any notice to the owner that he was under an obliga¬ 
tion to pay again for all the labor spent upon his house, or let 
the house go on execution. 


Of all these laws for the recovery of debts, and the enforce- 



;62 LIENS OF MECHANICS AND MA TERIAL MEN. 


ment of the liens of mechanics, the provisions now in force 
are quite recent. Only of late years has imprisonment for debt 
been greatly mitigated or removed, and the trustee or garnishee 
process made what it now is, exceedingly convenient and useful. 
The homestead law and the lien law, though now so widely 
spread, are a modern invention, or, at least, of modern intro¬ 
duction. One effect of this recent origin is, that important 
practical questions still exist as to their construction, applica¬ 
tion, and effect, which only time can solve. 

I give, annexed to this chapter, an abstract of the Laws of 
all the States relating to Mechanic Liens. 

In this chapter nothing more has been attempted than, 
First, to give a general and accurate view of all those principles of 
the laws relating to creditor and debtor which are now generally 
agreed upon, and may be regarded as probably permanent. 
Secondly, to indicate distinctly to the mechanic what rights he 
may possess and what securities he may hold, and how he may 
lose the rights and securities he possesses, and to the owner or 
buyer what liabilities he may incur, unless the one and the 
other take the proper course which the law has provided for 
their safety. 

The forms to be used under the lien laws are not prescribed 
by statute. Those given below are in use in some of our 
principal cities; and the same, in substance, would be suitable 
anywhere. 

( 263 .) 


A Notice under Mechanic’s Lien Law. 


(To be filed with the Clerk of the County .) 

To Esquire, 

Clerk of the City and County of 

Sir, 

Please to take Notice, That I, residing at. No. Street, 

in have a claim against amounting to the sum of 

due to me, and that the claim is made for and on account of (here state the 
work or materials ) and that such work was done in pursuance of (here 
describe the contract ) which building is owned by situated in the 

ward, of the city of on the side of 

Street, and is known as No. The following is a diagram of said 

premises (or, the said premises being described as follows ). 


RELEASE AND DISCHARGE OF A MECHANICS LIEN. 763 


And that I have and claim a lien upon said house or building, and the 
appurtenances and lot on which the same shall stand, pursuant to the pro¬ 
visions of an act of the Legislature of the State of to secure the 

payment of mechanics, laborers, and persons furnishing 'materials towards 
the erection, altering, or repairing of buildings. 

Dated, this day of 18 

(Signature?) 


County of 
City of 

(The name of the party claiming the lien) being duly sworn, say:d, that 
he is the claimant mentioned in the foregoing notice of lien, that he 

has read the said notice and knows the contents thereof, and that the same 
is true to his own knowledge, except as to the matters therein stated on 
information and belief, and as to those matters he believes it to be true. 

Sworn to before me, this day of 18 



( 264 .) 


A Bill of Particulars of Mechanic’s Claim. 


(To be served on owner?) 


A Bill of Particulars Of the amount claimed to be due from 
for and on account of (work or materials ) and that such work was done (or 
materials furnished) in pursuance of (state the contract or order) which 
building is owned by situated in the ward of the city of 

on the side of Street, and is known as No. 

of said street. 

(Signature of Claimant .) 
To (name of owner?) 

(Date?) 


( 265 .) 


A Release and Discharge of a Mechanic’s Lien. 

I do Hereby Certify, That a certain mechanic’s lien, filed in the office 
of the clerk of the county of the day of 

one thousand eight hundred and at o’clock in 

the noon, in favor of claimant against the building and 

lot, situate side of street, and known 

as No. in said street, whereof is owner, and 

is contractor, is discharged. 

(Signature?) 


ss . On the day of one 

thousand eight hundred and before me came who is 

known to me to be the individual described in, and who executed the above 
certificate, and acknowledged that he executed the same. 


7 g 4 LIENS OF MECHANICS AND MATERIAL MEN 

( 260 .) 

Release and Discharge of a Mechanics’ Lien—another 

Form. 

Whereas, We, the subscribers, have erected and furnished materials fo* 
erecting on lot or piece of ground situate 

And have agreed to release all liens which we, or any or either of us have, or 
might have, on the said by reason of materials furnished, or work 

performed, for erecting the same. Now these presents witness, that we, the 
subscribers, for and in consideration of the premises, and of the sum of one 
dollar, to each of us at or before the sealing and delivery hereof by the said 
well and truly paid, the receipt whereof we do hereby acknowl¬ 
edge, have remised, released, and forever quit-claimed, and by these presents 
do remise, release, and forever quit-claim unto the said and to 

his heirs and assigns, all and all manner of liens, claims, and demands what¬ 
soever, which we, or any or either of us, now have, or might or could have, 
on or against the said and premises, for work done, or for mate¬ 

rials furnished, for erecting and constructing the said building, or otherwise 
howsoever. So that he, the said and his heirs and assigns, shall 

and may have, hold, and enjoy, the said and premises, freed 

and discharged from all liens, claims, and demands whatsoever, which we, 
or any or either of us now have, or might or could have, on or against the 
same, if these presents had not been made. 

In Witness Whereof, We have hereunto set our hands and seals the 
day of the date written opposite our respective signatures. 

(Date.) (Witnesses at signing) (Signatures of Claimants) 


ABSTRACT OF THE LAWS OF ALL THE STATES 
RELATING TO MECHANICS’ LIENS. 

ALABAMA.—Every mechanic or other person who performs any work 
or labor, or furnishes any materials or fixtures, erection, or improvement on 
land, or does any repairing on the same by virtue of a contract, has a lien 
on such building or improvement, and upon the land on which it is situated, 
to the extent of one acre. The original contractor within six months, and 
any laborer within thirty days, and any other person within four months, 
must file with the judge of probate a statement of the account and descrip¬ 
tion of the property, and action must be brought to enforce the lien within 
ninety days from such filing. 

ARIZONA. — Every person performing labor upon or furnishing materials 
to the value of twenty-five dollars for the construction, alteration, or repair of 
any building or other structure, railroad, tramway, tollroad, canal, water ditch, 
flume, aqueduct, reservoir, bridge, fence, or other structure or improvement, 
or performing labor or furnishing materials to the value of twenty-five dollars 
on any mine, may have a lien thereon, and on the land necessary for the con¬ 
venient use and occupation of the same. Every original contractor within 


ABSTRACT OF MECHANICS' LIENS. 


765 

ninety days after the completion of contract, and every other person claim¬ 
ing lien within sixty days after completion of building, etc., must file for 
record with the county recorder a claim containing a statement under oath 
of his demands after allowing credits, name of owner if known, and em¬ 
ployer, terms of contract, and description of property. 

Any claimant other than original contractor must give notice of lien to 
owner within five days after filing. 

Suit to enforce lien must be brought within ninety days after filing. Any 
mechanic has a lien on articles of personal property made or repaired for 
owner, and may sell such articles at the expiration of two months at public 
auction, first giving twenty days’ notice. Wood cutters, foundry men, and 
machinists are also entitled to liens. 

ARKANSAS. — A mechanic or other person performing any work or 
labor, or furnishing any material or fixture, erection, or improvement on land, 
or doing any repairing on the same by virtue of a contract has a lien on such 
building or improvement, and upon the land upon which it is situated not 
exceeding two acres. He must file with the clerk of the circuit court of the 
county where the land is, within ninety days after ceasing to labor, a just and 
true account of the claim, and description of the property, and suit must be 
begun within nine months thereafter by a contractor, and within six months 
by a sub contractor. 

CALIFORNIA. — Every person performing labor upon, or furnishing 
materials to be used in the construction, repairing, or altering any structure, 
has a lien on the same for his services. The land, or the owner’s interest 
therein, is also subject to the lien, and every original contractor within sixty 
days from the time of completing his contract, and every other person within 
thirty days, must file with the county recorder a claim, stating his demand, 
the owner of the property, employer, and the property on which the lien is 
claimed, and suit must be begun within ninety days from the date of filing 
the claim. 

COLORADO. — A lien is allowed on personal property to the person 
making, altering, or repairing the same, and if it is not paid in ninety days 
after the work is done, it may be appraised and sold. Any person perform¬ 
ing work, or furnishing materials on any building by virtue of a contract, has 
a lien on the same, and he must, within sixty days if an original contractor, 
or forty days if a sub-contractor, file a statement in the county recorder’s 
office containing a notice that he claims such lien, a description of the 
property, and an abstract of the indebtedness, and the action to enforce the 
lien must be brought within six months after filing such notice. 

CONNECTICUT. — A lien is allowed on every building or railroad, in 
the construction or repairing of which any person has a claim for labor or 
materials exceeding twenty-five dollars. The lien is dissolved unless within 
sixty days after ceasing to labor or furnish materials, such person files with 
the clerk of the town where the building is, or in the case of a railroad, with 
the Secretary of State, a description of the premises, the amount of the lien, 


766 LIENS OF MECHANICS AND MATERIAL MEN. 

and the date of the commencement of the claim, the same being subscribed 
and sworn to. Foreclosure proceedings must be commenced within two 
years. 

DAKOTA. — Every mechanic or other person who performs labor or 
furnishes material, machinery, or fixtures for any building, erection, or 
improvement upon land, has a lien therefor upon the building and land. 
Notice of lien must be filed with the clerk of the district court, by a sub¬ 
contractor within sixty days, and by a contractor within ninety days after 
performing the labor or furnishing materials. 

No lien is allowed when other security is taken. 

DELAWARE. — A lien is allowed to any person furnishing materials or 
labor, or both, on any building to the amount of twenty-five dollars. The 
original contractor must file a statement not sooner than ninety or later than 
one hundred and twenty days after completion of the building, and other 
persons within ninety days. The statement must contain the names of the 
party claimant, and owner, and contractor, the amount claimed, and a bill of 
particulars of the work done, the time when the work was done, the locality 
of the building, and a description thereof. 

DISTRICT OF COLUMBIA. — Every contractor, material man, journey¬ 
man, or laborer has a lien on building and land for work, materials fur¬ 
nished, or machinery or other thing placed in the building as a fixture. 
Notice must be filed in the clerk’s office of the supreme court during the 
construction or within three months after completion of buildings or repairs, 
of the intention to claim a lien, and the amount, and the lien must be 
enforced by proceedings in equity within one year after filing such notice. 

FLORIDA. — Mechanics and all other persons performing labor or fur¬ 
nishing materials or machinery in the construction or repair of any building, 
mill, etc., have a lien on such building and the land on which it stands. 

Persons of any craft performing labor upon and with any machinery, 
apparatus, fixtures, or any other thing have a lien thereon for ninety days 
after failure or refusal to pay for such labor. These liens are enforced by 
attachment. Persons loading or unloading vessels have a lien on the vessels. 
Persons cutting or rafting logs or timbers have a lien on the same. 

Persons performing any labor on or for a railroad have a lien on the rail¬ 
road and its property, which may be enforced by bill in equity. 

GEORGIA.—All mechanics and persons doing any work on a building, 
or furnishing any materials or machinery, have a lien on the same; but there 
must be a substantial compliance with the contract, and the claim must be 
recorded within three months after the work is done, in the office of the clerk 
of the superior court for the county where the property is situated, contain¬ 
ing a description of the property and of the demand. Action to enforce a 
lien must be begun within twelve months after the claim is due. Mechanics 
and laborers also have a lien on personal property for work done in manu¬ 
facturing or repairing the same, which is enforced by retaining the property, 
but is lost on delivering it up, unless lien is recorded in clerk’s office in ten days. 


ABSTRACT OF MECHANICS' LIENS. 


767 

IDAHO. — Liens are given for labor or materials furnished and used in 
the construction, alteration, or repair of any mining claim, building, wharf, 
bridge, ditch, flume, tunnel, fence, machinery, wagon road, aqueduct to 
create hydraulic power, or any other structure, or for Tabor on a mining 
claim. 

Every original contractor within sixty days after the completion of his con¬ 
tract, and every other person claiming a lien within thirty days after the com¬ 
pletion of the building or the repairs on the same, must file with the recorder 
of the county a claim containing a statement under oath of his demand, name 
of owner of property, if known, of his employer or person to whom mate¬ 
rials were furnished, statement of terms, and conditions of contract and 
description of property. Suit to foreclose lien must be commenced within 
ninety days after filing. 

ILLINOIS. —An original contractor who furnishes labor or materials, or 
services as architect or superintendent for a building, has a lien on the build¬ 
ing and lot. 

Sub-contractors and workmen are entitled to a lien to the extent of bal¬ 
ance due the original contractor. Under express contracts there is no lien 
if the time for its completion exceeds three years, and under implied con¬ 
tracts work must be performed or materials furnished within one year. 

Original contractor must enforce lien within six months after last pay¬ 
ment is due. 

Sub-contractor must give notice of claim for lien within forty days from 
completion of sub-contract or from time payment was due to him, and may 
enforce the same within three months from completion of sub-contract or 
work. Contractors, material men, and employees on railroads have lien on 
all property of the company, which must be enforced within six months. 

INDIANA. — Mechanics and all other persons performing labor or fur¬ 
nishing materials or machinery on any structure or building whatsoever, 
have a lien on the same. To secure the lien a notice of the claim must be 
filed in the record office of the county where the building is, within sixty 
days after completion of the building or repairs. Suit may be begun to 
enforce the same within one year. A mechanic or tradesman has a lien on 
any personal property for work done, and may sell the same if completed and 
not paid for within six months after the claim becomes due. 

IOWA. — Mechanics and other persons who do any work or furnish 
materials on any building or improvement, have a lien on the buildings and 
the land on which they are. To avail themselves of such lien, there must be 
filed in the office of the clerk of the court for the county where the building 
is, within ninety days after the work is done or the materials furnished by 
principal contractors, or within thirty days by sub-contractors, a true account 
of the work done, and a description of the property, and suit must be begun 
within two years. 

KANSAS. — Mechanics, artisans, and tradesmen have a lien on all 
articles constructed and repaired by them, and if the same be completed 


768 LIENS OF MECHANICS AND MATERIAL MEN. 

and not taken away, and the fair charges on the same not paid, the property 
may be sold at any time after three months. Any mechanic or other person 
who shall furnish, under contract, any labor or materials for erecting, 
altering, or repairing any building or appurtenance, or any machinery or 
fixtures in the same, or plant or grow any trees, vines, hedges, etc., or shall 
build a stone or other fence, shall have a lien on the buildings, land, and 
appurtenances. Sub-contractors must file a statement of their account with 
the clerk of the District Court for the county within sixty days after the 
completion of the buildings, etc., or the furnishing the labor or materials. 
Contractors must file such an account within four months, and all actions 
to enforce liens must be begun within one year after completion of the 
work. 

KENTUCKY. — Any person who performs any labor or furnishes any 
material, or fixtures, or machinery in the erection, alteration, or repair of 
any structure, or who makes any excavation or improvement in any manner 
on real estate, by a contract with or written consent of the owner, has a 
lien on the building and land for twelve months from the completion of the 
work; and within sixty days after ceasing to labor or furnish materials, he 
must file in the office of the county clerk of the county where the building is, 
a statement of the amount due, a description of the property, and the name 
of the owner, and also whether the work was done or the materials furnished 
by contract with the owner or with a contractor or sub-contractor. 

Sub-contractors and laborers may acquire a lien to the extent of balance 
due the principal contractor by giving notice to employer that they claim a 
lien, and filing a statement as above. 

LOUISIANA. — Liens in this State are known as privileges. Architects, 
contractors, and all persons who are employed in constructing or repairing 
any building, and all persons who have supplied the owner, agent, or sub¬ 
contractor with materials to be used on any building, have a lien and 
privilege on the buildings and lot of land not exceeding one acre. The 
privilege must be recorded with the register of privileges in the parish where 
the property is, together with the act containing the bargain made, or a state¬ 
ment of the account. 

MAINE. — Any person performing or furnishing labor or materials in 
erecting, altering, or repairing any house, building, or appurtenance by virtue 
of a contract with, or by consent of the owner, has a lien on the building 
and land on which it stands. If the labor or materials are not furnished by 
contract with the owner, he may prevent the lien for such labor or materials 
not yet furnished, from attaching, by giving written notice that he will not 
be responsible for the same. The lien is dissolved, unless, within thirty 
days after ceasing to labor, the claimant shall file, in the office of the town 
clerk where the building is, a true statement of the account, a description of 
the property, and the owner’s name, and suit must be begun within ninety 
days after the last labor was performed or materials furnished. 

MARYLAND. — Every building, machine, wharf, or bridge erected, and 


ABSTRACT OF MECHANICS’ LIENS. 


769 

every building, machine, wharf, or bridge repaired, or improved to the extent 
of one-fourth of its value, is subject to a lien for the payment of all debts 
contracted, or work done or materials furnished for or about the same. If 
the contract be made with any one but the owner, the claimant must, within 
sixty days after furnishing the work or materials, give notice in writing to 
the owner, and must within six months file a statement of his demand in the 
office of the clerk of the Circuit Court for the county where the property is, 
or in Baltimore in the Superior Court. The lien continues for five years. 
The counties of Charles, Calvert, and St. Mary’s are not included in the 
number of those to which the lien laws apply. 

MASSACHUSETTS. — Any person to whom a debt is due for labor 
performed or furnished, or for materials furnished and actually used in the 
erection, alteration, or repair of any building or structure upon real estate, 
by virtue of an agreement with, or by consent of the owner thereof, or any 
person having authority from the owner, has a lien on the property and land 
for his charges. There can be no lien for materials furnished to a person 
other than the owner, unless notice of intention to claim lien is given to the 
owner before furnishing the materials, and the owner may prevent the lien 
in such case from attaching by giving written notice that he will not be 
responsible. Any one having an interest in the property claimed may release 
the same by giving a sufficient bond. Liens are dissolved, unless the claim¬ 
ant, within thirty days after ceasing to work, files in the registry of deeds 
for the county or district where the property is situated, a true statement of 
the account, under oath, together with a description of the property and the 
owner’s name; and suit to enforce the lien must be begun within ninety days 
after ceasing to work or furnishing materials. 

MICHIGAN. — Every person who, under any express or implied contract 
with the owner, lessee, or contractor, alters, improves, repairs, erects, or orna¬ 
ments any building, wharf, or other structure, or furnishes labor or materials 
for any of said purposes, has a lien thereon and on the land to the extent of 
a quarter section, or, in a city, the lot or lots. A sub-contractor, laborer, or 
material man has a similar lien. 

A written, verified statement, setting forth the time when the labor was 
performed or materials furnished, a description of the property, the name of 
the owner, and the amount due, must be filed in the office of the register of 
deeds of the county where the land lies, by a principal contractor within 
ninety days, and by a sub-contractor, material-man, or laborer within thirty 
days, after the last of material is furnished or labor performed. Notice 
must also be served on the owner if to be found in the county, or on his 
agent having charge of the premises. The lien is treated as a mortgage, and 
enforced through the court of chancery. 

MINNESOTA. — Whoever performs labor, or furnishes materials or 
machinery for erecting, altering, or repairing any building or appurtenance, 
or in constructing, altering, or repairing any boat or vessel, either as con¬ 
tractor, sub-contractor, journeyman, laborer, or otherwise, has a lien on the 
same, and on the land on which the buildings are, not exceeding forty acres, 
49 


770 


LIENS OF MECHANICS AND MATERIAL MEN 


or if in a city or town, the lot on which the building is, not exceeding one 
acre. The claimant must make an account, in writing, of the work done or 
materials furnished, together with a copy of the contract, if in writing, within 
six months after furnishing such work or materials, and file the same in the 
register’s office for the county where the work was done. The lien continues 
in the case of a contractor, for two years from the completion of the work or 
furnishing material; in that of a sub-contractor, journeyman, etc., for two 
years from the commencement of the work or furnishing material. Who¬ 
ever makes, alters, or repairs any personal property has a lien on the same, 
and may retain possession of the property until his just and reasonable 
charges are paid, and if not paid within three months, the property may be 
sold, after giving notice of sale for three weeks. 

MISSISSIPPI. — Every building, bridge, or addition to any fixed ma¬ 
chinery or gearing, or fixtures for manufacturing purposes, every boat or 
water-craft, and every paling or enclosure is liable for the payment of any 
debt contracted and owing for labor performed or materials furnished about 
the erection, alteration, or repair of the same, and the debt is a lien on the 
building or structure and the land on which it is. The lien takes effect 
from the time of filing the contract in the office of the chancery clerk for the 
county where the land is, or from the commencement of suit to enforce it, 
and such suit must be begun, within six months after the money claimed is 
due and payable. Sub-contractors, or employees, or furnishing men of a 
contractor, are not entitled to a lien. 

MISSOURI. — Every person performing any work or furnishing any 
materials, fixtures, engines, boilers, or machinery for any building, erection, 
or improvement on land, or for repairing the same, has a lien for his services 
on the building and land belonging to the owner on which the building is, to 
the extent of one acre, or if in a city, town, or village, on the lot and building. 
Every original contractor within six months, every journeyman and day- 
laborer within thirty days, and every other person within four months, must 
file with the clerk of the circuit court for the county where the property is, a 
true account of his demand, a description of the property, and the owner’s 
name, and action to enforce the lien must be begun within ninety days after 
filing such account. Sub-contractor or laborer must give owner ten days’ 
notice before filing lien. 

MONTANA. — Mechanics, laborers, and others who contribute to the 
construction, repairing, or improving of any kind of property, have a lien 
thereon. Original contractor within ninety days of date of last item, sub¬ 
contractor within thirty days, must file in the county recorder’s office his 
account, with description of property on which lien is claimed. Suit must 
be commenced by contractors within one year after filing, by sub-contractors 
within ninety days. 

NEBRASKA. — All persons performing any labor or furnishing any 
materials or machinery, for erecting, repairing, or removing any building or 
appurtenance by virtue of a contract with the owner or his agent, have a 


ABSTRACT OB' MECHANICS' LIENS. 


77 1 

lien to secure payment for the same, on the building or appurtenance and 
lot on which it stands. The claimant must make an account in writing, 
under oath, and within four months from the time of doing the work or 
furnishing the materials, must file the same in the office of the clerk of the 
county where the work was done, and the lien continues for two years from 
date of first item. 

NEVADA. — Every person performing labor upon, or furnishing mate¬ 
rials of the value of five dollars to be used in constructing, altering, or 
repairing any building, railroad, tramway, toll-road, canal, water ditch, fence, 
or any other structure, or who performs labor on any mining claim, to the 
amount of five dollars, has a lien on the same for his work, labor, or mate¬ 
rials, if done at the instance of the owner or his agent. The land occupied 
by the building, structure, or improvement is subject to the lien. Original 
contractors within sixty days, and all other persons within thirty days, after 
the completion of the building, improvement, or structure or alteration of 
the same, must file in the record office for the county where the land is, a 
statement of the demand, the owner’s name, and description of the property. 
Suit must be begun within six months after filing the claim. 

NEW HAMPSHIRE. — Any person who, by himself or others, performs 
labor or furnishes materials to the value of fifteen dollars or more, for erect¬ 
ing, altering, or repairing a house, or other building or appurtenance, by 
virtue of a contract with the owner, may have a lien on the same, such lien 
to be secured by attachment, and to continue ninety days. A sub-contractor 
may have a similar lien by giving notice in writing to the owner or person 
having charge of the property of his intention to claim a lien, and furnishing 
to the owner once in thirty days an account of labor performed or materials 
furnished. Lumberers and railroad sub-contractors have a like lien, on 
giving similar notice and account. 

NEW JERSEY. — Every building constructed, erected, or repaired, and 
machinery or fixtures put into any building, are liable for the payment of all 
debts contracted and owing to any person for labor performed or materials 
furnished for the erection or repair of such building, machinery, or fixtures. 
But if the work was done by contract, the building is liable to the contractor 
alone, provided the contract, or a copy, is filed in the county clerk’s office, 
before any work was done or materials furnished. The claimant must, within 
one year after performing the labor or furnishing the materials, file in the 
office of the county clerk a statement containing a description of the building, 
the owner’s name, and the name of the person contracting the debt, the time 
of beginning the work, and a bill of particulars, and a suit must be brought 
within the year after date of last item. 

NEW MEXICO. — Any person furnishing labor or materials for the 
erection or repair of a building, has a lien thereon and on the land on which 
it stands. Original contractor must file in office of county clerk a statement 
of account, under oath, and description of property, within ninety days after 
completion of contract. Sub-contractors must file similar statement within 


772 


LIENS OF MECHANICS AND MATERIAL MEN. 


sixty days after work done or material furnished. Suit must be brought 
within one year from time of payment falling due. 

NEW YORK. — Contractors, laborers, and others, who furnish labor or 
materials in erecting or improving any building, by virtue of a contract with 
the owner or his agent, may have a lien on the premises to secure the pay¬ 
ment of their claims. Generally a notice of this lien, including specification 
of the claim, and copy of the contract, if there is one, must be filed within 
thirty days after ceasing to work or furnish materials, and suit begun within 
a year after such time. The law differs slightly in the various counties. 

NORTH CAROLINA. — Every building built, rebuilt, repaired, or im¬ 
proved, together with the lot on which the building is, and every lot, farm, 
or vessel, is subject to a lien for the payment of all debts contracted for 
work or materials furnished about the same. Notice of the lien must be 
filed in the office of the clerk of the superior court of the county within 
twelve months after the labor is completed or materials furnished, specifying 
the labor or materials furnished, and the time. Suit must be brought within 
six months after filing lien. Sub-contractors, laborers, and material men can 
take a lien by notifying owner of property before he has settled with the 
contractor, and filing notice as above. Agricultural laborers and persons 
engaged in loading vessels also have liens. Mechanics and artisans have a 
lien on personal property made or repaired by them, and they may retain 
possession of the property. If their charges are not paid within thirty days, 
if the value of the article does not exceed fifty dollars, or ninety days if the 
value is over fifty dollars, they may proceed to sell the property at auction, 
after giving two weeks’ notice. 

OHIO. — Any person performing any labor, or furnishing any materials 
or machinery for the construction, alteration, or repair of any vessel or water¬ 
craft, any building or appurtenance, bridge, or other structure, by virtue of a 
contract, has a lien on such structure and the owner’s interest in the land 
on which it stands. He must file an account of his work or materials per¬ 
formed or furnished, and a copy of the contract, if it was in writing, in the 
recorder’s office for the county within four months after doing the work, and 
the lien continues for two years from the date of such filing. 

A sub-contractor or journeyman employed by the original contractor, 
may file with the owner of the property a sworn and itemized account of the 
amount due him for labor or material, and such owner shall detain any sums 
thereafter payable on the contract as security therefor. 

Persons furnishing labor or materials to a railroad are also entitled to a 
lien. 

OREGON. — Any person who, by virtue of a contract with the owner or 
his agent, performs any labor, or furnishes any materials, engines, or 
machinery for the construction or repair of any building or structure, has a 
lien on the building and lot on which it stands for his pay. An original con¬ 
tractor must file in the office of the county clerk, within sixty days after the 
completion of the building or repairs, a notice of his intention to claim a 


ABSTRACT OF MECHANICS 1 LIENS. 


773 

lien, specifying the amount due, and the property. A laborer or sub-con¬ 
tractor must file notice within thirty days. The lien will not be binding for 
more than six months after such filing, unless suit is brought. Mechanics 
and artisans have a lien on personal property made or repaired by them, and 
if their charges are not paid in three months, they may sell the property. 

PENNSYLVANIA. — All buildings, wharves, fixtures, engines, machin¬ 
ery, etc., erected, repaired, altered, or added to, are subject to a lien for the 
payment of all debts contracted for work done or materials furnished about 
the same. The lien extends to the land on which the structure is. The 
claimant must file in the office of the Prothonotary of the Court of Common 
Pleas for the county where the property is, a statement containing the names 
of the claimant, owner, and contractor, the amount and nature of the claim, 
and a description of the property, within six months, and suit may be 
brought at any time within five years. 

RHODE ISLAND. — Every building or other improvement erected or 
repaired by contract with, or consent of, the owner, is subject to a lien for all 
work done or materials furnished in the construction or repair of the same. 
Persons employed by a contractor must give owner written notice of inten¬ 
tion to claim lien within thirty days after work is commenced. 

To enforce lien, the claim, including an account and description of prop¬ 
erty, must be filed in the office of the town clerk of town where land is situ¬ 
ated within four months after default in any payment if work is done by 
written contract, or within six months after commencement of work under 
verbal contract. A petition in equity must be filed in the clerk’s office of the 
Supreme Court within twenty days after the filing of the claim. 

SOUTH CAROLINA. — Any person to whom a debt is due for labor 
performed or materials furnished and actually used in the erection, altera¬ 
tion, or repair of any building or structure on real estate, by virtue of a 
contract with, or consent of, the owner or his agent, has a lien on the build¬ 
ings and land for his pay. The lien for materials furnished does not attach 
unless, before furnishing the same, the claimant gives notice to the owner, 
who is not the purchaser, that he intends to claim a lien. If the owner is 
not the contracting party, he may prevent any lien from attaching, by giving 
written notice that he will not be responsible for the debts of the contractor. 
The claimant, within ninety days after ceasing to labor or furnish materials, 
must file in the office of the clerk of the Court of Common Pleas a state¬ 
ment of his account, with a description of the property, and the owner’s 
name, and record it within forty days thereafter in the office of register of 
mesne conveyances. Suit must be begun within six months after ceasing 
to labor. 

TENNESSEE. — There is a lien on any lot of land upon which a house 
has been built or repaired, or fixtures or machinery furnished or erected, or 
improvement made by special contract with the owner or his agent in favor 
of all persons doing any work or furnishing any materials on or about the 
same. The lien includes the buildings on the land, and continues for one 


LIENS OF MECHANICS AND MATERIAL MEN 


774 

year after completion of the work. Sub-contractors and workmen must, at 
the time of beginning to work, give notice to the owner of their intention o 
claim a lien. 

TEXAS.— Master-builders, and mechanics of all kinds, contracting to 
erect buildings of any description, have a lien in the nature of a mortgage 
on the buildings and land, provided the contract is in writing, or if verbal, 
stated on oath and copy rendered to debtor, and recorded in the office of the 
clerk of the county where the building is, within four months after debt has 
accrued. All persons doing any work or furnishing any materials on any 
such building may, if their work or materials are not paid for, deliver to the 
owner a copy of their account, and he is then authorized to retain enough to 
pay them out of the amount due the contractor. 

UT AH. — Any person who, by virtue of a contract with the owner, fur¬ 
nishes labor or materials in the construction or improvement of any building 
or structure, or in working a mine, has a lien thereon, provided he files with 
the county recorder, within ten days after the completion of his contract if 
an original contractor, or thirty days after the completion of the building, 
etc., if a sub-contractor, a claim, under oath, containing a statement of his 
demand after deducting all credits, name of owner if known, and employer, 
the terms of the contract, and description of property. Suit for foreclosure 
must be commenced within ninety days after filing. 

VERMONT. — Any person performing any labor or furnishing any 
materials for building, repairing, fitting, or furnishing any ship, vessel, or 
steamboat, has a lien on the same for eight months after completion of the 
same. His claim must be due, and he must demand payment of the same. 
When any contract is made, in writing or otherwise, for the erection, repair, 
or alteration of any building, or for furnishing any materials about the same, 
the person proceeding under the contract has a lien on the house and land, 
which continues for three months after payment of the claim is due; but the 
claimant must file in the clerk’s office of the town where the building is, a 
memorandum showing his claim. 

VIRGINIA. — All persons performing labor or furnishing materials for 
the construction, repair, or improvement of any building or other property, 
have a lien thereon and on so much land as is necessary to the convenient 
use of the premises, but the lien for repairs attaches only when they were 
ordered by the owner or hi? agent. A general contractor must, within ninety 
days after the completion of such building, etc., and a sub-contractor, or 
material man, within thirty days, file in the county clerk’s office, or if the 
property be in the city of Richmond, in the clerk’s office of the chancery 
court, a statement of account, under oath, with a description of the property 
and claim of lien thereon, and give notice to the owner of the property. A 
sub-contractor or person furnishing materials for a general contractor may, 
within thirty days after the building, etc., is completed, furnish the owner 
with an account, under oath, of the amount due and unpaid by the general 
contractor, and the owner shall be liable for the amount of such claim from 
the time of furnishing such statement. 


ABSTRACT OF MECHANICS' LIENS. 


77 5 


WASHINGTON TERRITORY. — Mechanics and material men may 
have liens on buildings and lands on which they stand, by filing notice 
thereof, within sixty days of the completion of the work or furnishing mate¬ 
rials, with the county auditor, stating amount due above £11 set-offs. Suit 
must be brought within eight months after such filing. 

Lumbermen may have a similar lien on logs and timber, and farm laborers 
on crops, by filing notice of lien in county auditor’s office within thirty days 
after debt accrued, and bringing suit thereon within one year thereafter. 

WEST VIRGINIA. — Every person who shall perform any work or 
labor, or furnish any materials in the construction, alteration, or repair of 
any house, building, or appurtenance, by virtue of a contract with the owner 
or his agent, has a lien on the buildings and land for his pay. He must, 
within sixty days after the ceasing to labor or furnish materials, file with the 
clerk of the court for the county where the property is, a true account of 
the amount due, a description of the property, and the owner’s name. Sub¬ 
contractors must, within thirty days after their employment expired or 
materials were furnished, give notice to the owner that the contractors are 
indebted to them, and the amount, and that they claim a lien therefor. The 
aggregate of such liens shall not exceed the amount due to the original con¬ 
tractor at the time such notice is given, except as to persons who may, before 
furnishing labor or materials, have given owner notice in writing that they 
shall hold him responsible. Suit to enforce the lien must be begun within 
six months. 

WISCONSIN. — Every person furnishing labor, materials, or machinery, 
in the erection, construction, repair, protection, or removal of any building, 
bridge, water lot, wharf, well, or fountain, may have a lien thereon to the 
extent of forty acres, or, within the limits of an incorporated city or village, 
one-quarter of an acre. A claim for lien must be filed with the clerk of the 
circuit court within six months from the date of the last charge, and action 
brought within one year from such date, unless, within thirty days before 
the expiration of the year, the time is extended for another year, by annexing 
to the claim on file an affidavit showing the interest of the claimant in the 
property by virtue of such lien. 

Sub-contractors have a similar lien to the extent of amount due from 
owner to contractor, if claim is filed within sixty days after the last charge. 

WYOMING. — Any person performing labor or furnishing materials, 
fixtures, or machinery for any building, erection, or improvement on land, or 
for repairing the same, may have a lien on the land to the extent of one acre, 
or if in a city, town, or village, on the lot on which the building is situated. 
Every original contractor within sixty days, and every sub-contractor, jour¬ 
neyman, or laborer within twenty days, after indebtedness accrues, must 
file, with the register of deeds of the county, an account, under oath, of the 
amount due after allowing for credits, a description of the property, and 
name of owner and contractor if known. Persons other than original con¬ 
tractors must, ten days before filing lien, give written notice of the claim and 
amount thereof. Proceedings to foreclose lien must be begun within a year. 


776 


THE DISPOSAL OF PROPERTY BY WILL. 


CHAPTER XXXVII. 

OF THE DISPOSAL OF PROPERTY BY WILL. 


SECTION I. 

OF WILLS. 

Few persons are aware how very difficult it is to make an 
unobjectionable will. There is nothing one can do, in reference 
to which it is more certain that he needs legal advice, and that 
of a trustworthy kind. Eminent lawyers, not practised in this 
peculiar branch of the law, have often failed in making their 
own wills, both in England and in this country. And there are 
seldom blank forms for wills printed and sold, as there are for 
deeds and leases. Nevertheless, it may happen that one is called 
upon to make his own will, or a will for his neighbor, under 
circumstances which do not admit of delay; or he may have 
some interest in the will of a deceased person, and questions 
may have arisen, which some knowledge of legal principles will 
answer. We shall try to state here what may be of use in such 
cases ; and shall append a form for a will. 

Any person of sound mind and proper age may make a will. 
A married woman cannot, unless in relation to trust property, 
whereof the trust or marriage settlement reserves to her this 
power ; or the statute law of her State gives it, as is the case now 
in many States. 

One must be of full age in order to devise real estate. But 
in most of our States minors may bequeath personal property; 
and a frequent limitation of the age for such bequest is eighteen 
years for males, and sixteen years for females. 

The testator should say distinctly, in the beginning of the 
instrument, that it is his last will. If he has made other wills, 
it is usual and well to say, “ hereby revoking all former wills ; ” 
but the law gives effect to a last will always. 

It should close with the words of attestation : “ In witness 
whereof, I have hereunto signed and sealed this instrument, and 
published and declared the same as and for my last will, at 



WILLS. 


777 


on this day of Then 

should follow the signature and seal; for this latter, although 
not always required by law, is usually and properly affixed. 

The witnessing part is very material. The requirements in 
the different States are not precisely alike; but they are all in¬ 
tended to secure such attestation as will leave the fact of the 
execution of the will, and its publication as such, beyond doubt. 
In a very few States, it is enough if the signature be proved by 
credible witnesses, although there be no witnesses who sub¬ 
scribed their names to the will. In many, two subscribing wit¬ 
nesses are enough. It is so in the provinces of the Dominion 
of Canada, generally. But in some States it is necessary, and 
in all I recommend\ that the testator should ask three disinter¬ 
ested persons to witness this will; and should then, in their 
presence, sign and seal it, and declare it to be his will; and 
they should then, each in the presence of the testator and of the 
other witnesses, sign his name as witness. See the Abstracts 
at the close of this chapter. 

Each should see the execution which he says he witnesses; 
and the signing by the witnesses should all be seen by the testa¬ 
tor ; but the law is satisfied if the thing is done near the testa¬ 
tor, and where he can see if he chooses to look. If the testator 
is too feeble to write his name, let him make his mark ; and for 
this purpose any mark is enough, although a cross is commonly 
made. So, if a witness cannot write his name, he may make 
his mark ; but this should be avoided if possible. 

Over the witnesses’ names should be written their attesta¬ 
tion ; and any alteration in the will should be noticed. If the 
attestation be in the following words, it will be safe in any part 
of this country : 

“At on this day of the above- 

named signed and sealed this instrument, and pub¬ 

lished and declared the same as and for his last will; and we, in 
his presence, and at his request, and in the presence of each 
other, have hereunto subscribed our names as witnesses.” 

Witnesses should be selected with care, where that is possi¬ 
ble ; for if any question arises about the testator’s sanity, or 
anything of the kind, their evidence is first to be taken, and is 


778 THE DISPOSAL OF PROPERTY BY WILL. 

very important. But any persons competent to do ordinary 
acts of business may be witnesses. Nor do the usual qualifica¬ 
tions for business apply. Thus, married women and minors may 
be witnesses of wills. But no person should be called upon to 
witness a will who is a legatee, or an executor, or otherwise 
interested in the will. If such a person were a witness, it might 
not avoid the will; but a legatee would lose or be obliged to 
renounce his legacy ; and, generally, it might lead to unintended 
results. What was said in relation to deeds, of witnesses remem¬ 
bering, etc., or proof of handwriting in case of their death or 
absence, is true also of wills. 

As to the body of the will, the testator must express his wishes 
• as clearly and accurately as possible; and, unless he has good 
legal advice, he should make the disposition of his property as 
simple as possible. 

The word “ bequeath ” applies, properly, to personal estate 
only ; the word “devise,” to real estate only. It is safe enough 
to begin, “ I give, bequeath, and devise my estate and property, 
as follows : that is to say,”—and then go on and tell what 
shall be done with this and that piece of property, or sum of 
money. 

Words of inheritance should be added to any devise of land 
(if not intended for the life of the devisee only), as was said in 
reference to deeds ; although they are not required in wills so 
peremptorily as in deeds. The words of inheritance are,—To 
A B “and his heirs.” 

If it is intended, as usually is the case, that the will should 
apply to all the real estate possessed by the testator at the time 
of his death, although purchased after the will is made, there 
should be a clause expressing this intention. 

If children are not provided for in a will, the law sometimes 
presumes they were forgotten ; and it gives to any such child 
the same share as if there were no will, unless the omission is 
explained in the will, or by evidence, and shown to have been 
intentional. If the child were provided for in the lifetime of the 
father, the law, generally, would not presume that the child was 
forgotten ; it is best, however, to guard against any question of 
the kind, by saying that the omission to give to the child any¬ 
thing is intentional. 


WILLS . 


779 

A testator should always name his executors; but the will 
is perfectly good without any executor being named, for the 
court of probate will appoint an “administrator with the will 
annexed.” 

If the testator desires that his executor or trustee should not 
give bonds, he should say so distinctly in his will. 

Nuncupative wills are wills made by word of mouth. 

Olographic wills are wills written entirely by the testator’s 
hand. 

In the provinces of the Dominion of Canada, generally the 
laws as to the construction, effect, and execution of a will are 
the same as in the United States : the principal difference being 
that, in the Province of Quebec, the French rule prevails, and 
an olograph will is valid without witnesses. 

SECTION II. 

CODICILS. 

A codicil is a little additional will. That is, it is a testa¬ 
mentary disposition, not revoking the former will, but varying 
it in some way, or making changes in it. There can be but one 
will, and that the last; but there may be any number of codi¬ 
cils, all valid. The changes made by a codicil in a will, or in 
former codicils, should be very distinctly stated ; and some words 
like these should be used: “ I hereby expressly confirm my 
former will, dated excepting so far as the disposi¬ 

tion of my property is changed by this codicil.” And the cod¬ 
icil should be called, at the beginning and end, a codicil, and 
executed and witnessed in the same manner as a will. 

If a codicil gives one a legacy, who has already one by the 
will, the codicil should state whether it gives the second legacy 
instead of the first, or in addition to it. And if advances are 
made to a child during life, there should be an indorsement on 
the will (but a statement in the will or codicil would be better), 
stating whether these advances are to be charged to him, and in 
what way, whether with interest, etc. 


ySo THE DISPOSAL OF PROPERTY BY WILL. 


SECTION III. 

REVOCATION OF WILLS. 

The law concerning the revocation of a will is quite nice 
and technical. A codicil, we have seen, does not revoke, and a 
new will does. So might tearing off the name ; but then the 
question might come, who tore it off ? It is better to leave nei¬ 
ther this nor any other question : and therefore to destroy a 
will which it is intended to revoke. If the will is out of the 
testator’s reach and power, and so cannot be destroyed, it would 
be best to make a new will, revoking the old one ; which any tes¬ 
tator can always do. 

A will is revoked by the operation of law, if the testator 
afterwards marry and have a child. If the testator, after this, 
intends that his will shall take effect, he should expressly con¬ 
firm it; and the correct way to do this would be by making a 
new will. If he leaves anything to his wife, and intends that 
she should have it instead of dower, or of the additional rights 
which recent statutes in some of the States have given her, he 
should say so. And then she will not have both, but may 
choose between the provision of the law and that of the will, 
taking whichever she prefers, and leaving the other. 

For the rights of the wife or widow in the several States, I 
refer back to the abstract of the statutes of the several States, 
in Chapter V. 

Annexed to this chapter is an abstract of the laws of all the 
States relating to wills. 

It is impossible to do more than to give such forms and 
rules as will be applicable to all wills, and enable any person to 
draw a simple will with safety. No one can express accurately 
provisions for trust estates, remainders, executory devices, etc., 
without knowing the law on these subjects,—and this is an 
extensive and difficult department of the law. All that is 
necessary, and may be relied upon as generally sufficient, is as 
follows: 


FORMS OF WILLS. 


781 


( 267 .) 

Form of a "Will. 

I, of (place and occupation), make this my last will. I give, 

devise, bequeath my estate and property, real and personal, as follows, that 
is to say: 

Then follow all the provisions and disposition of property 
which the testator intends, stated fully, plainly, and as accu¬ 
rately as possible, paying due regard to the rules and prin¬ 
ciples laid down in the chapter of this book on this subject. 
And if these provisions are carefully presented in distinct and 
intelligible language, the courts will generally supply whatever 
of technicality is wanting. Then follows, first, the appoint¬ 
ment of an executor, and then the execution, and finally the 
declaration of the witnesses, thus : 

I appoint (name, residence, and occupation) executor (or executors if more 
than one be desired) of this my will. 

In witness whereof, I have signed and sealed and published and declared 
this instrument as my will, at (place), on (date). 

(Signature.) (Seal.) 

The said at said (place), on said (day), signed and sealed this 

instrument, and published and declared the same as and for his last will. 
And we, at his request, and in his presence, and in the presence of each 
other, have hereunto written our names as subscribing witnesses. 

(Here follow the names of three witnesses .) 

A codicil should be written thus: 

I, of (place and occupation), do make this my codicil, hereby 

confirming my last will made on the (date of the will), and all my former 
codicils (if there be any), so far as this codicil is consistent therewith ; and 
do hereby— 

Then follows whatever disposition the testator chooses to 
make, stating and describing it as he would if it were a will, 
and executing it, and having it attested in the same manner as 
if it were a will, excepting that, instead of calling it a will, 
wherever that word occurs, he says, “codicil” instead of “will.” 
If he gives in his will or codicil a legacy to a woman, it is 
generally best to add “this legacy (or bequest) to be for her 
sole and separate use, independent of her husband, at all times. 


y$2 THE DISPOSAL OF PROPERTY BY WILL. 

( 268 .) 

Copy of a fuller Form of a ‘Will. 

Be it Remembered, That I, of the city of in the 

State of Esquire, do make this my last will and testament, in 

manner following. That is to say,— 

I order and direct that all my just debts shall be paid with convenient 
speed 

I give unto Mr. of said city, merchant, the amount of moneys 

due and owing from him to me, according to the tenor and effect of four 
promissory notes signed by him, viz: one dated October 16, 1819, for ninety- 
six hundred and eighty dollars ; one dated August 9, 1822, for five thousand 
dollars ; another dated August 9, 1822, for forty-five hundred and fifty-eight 
T 8 „ 6 g- dollars ; and another dated August 15, 1822, for fifty-six hundred dollars : 
arid I order said four notes to be cancelled. 

To the wife of said I give an annuity of six hundred 

dollars, to be paid her in two equal and half-yearly payments of three 
hundred dollars each. 

It is my will, and I order and direct that a trust fund of ten thousand 
dollars shall be raised out of my estate and invested at interest, the income 
and produce of which trust fund I give unto of 

single woman, to be paid to her half-yearly, during her natural life. And at 
the decease of the said the principal sum or trust fund shall be 

paid to and among such person and persons in such shares and portions as 
she, the said by any writing by her signed in the presence of two 

or more credible witnesses, shall give, direct, and appoint. And in default 
of such appointment, then said trust fund, or principal sum shall go, as the 
residue of my estate, to the residuary legatee hereinafter named. 

I also direct that another trust fund of ten thousand dollars shall be 
raised out of my estate and invested at interest. And I give the interest 
and produce of this trust fund, when and as it accrues, unto the 

wife of . It is my will that the income of this fund, or principal 

sum shall, during the natural life of said either be paid into her 

proper hand, or upon her order or receipt, signed by her alone, notwithstand¬ 
ing her coverture. And I declare that neither the principal nor income of 
this fund shall be subject to the control, debts, or engagements of the 
present or any future husband of said the same being intended 

for her sole and separate use. 

At the decease of said I give said principal sum or trust fund 

to the issue of said and in default thereof to such other person 

or persons as she, by a last will, or any writing in the nature of a last will, 
shall give, direct, or appoint the same ; and in default of such appointment, 
it is my will that said trust fund or principal sum shall be disposed of and 
pass as part of the residue of my estate. 

I give to an annuity of three hundred dollars, to be paid by 

two equal sums to said half-yearly, during her natural life. 


FORMS OF WILLS. 


783 


10 o£ in (he County of widow, I give 

an annuity of one hundred dollars, to be paid her, during life, in quarter- 
yearly payments. 

I also give unto of in the County of 

widow, an annuity of two hundred dollars, to be paid in quarter-yearly pay¬ 
ments during her life. 


I order my executor, hereinafter named, to pay of 

either in money, or such articles as his comfortable maintenance may require, 
fifty dollars annually during his life, at such times as said executor shall 
think proper. 

w ^ e °f of I give an annuity of 

one hundred dollars, to be paid during her life quarterly. 

w ^ e of I give three hundred 

dollars, and direct three notes, held by me, signed by her husband, for one 
hundred dollars each, to be cancelled. 

T° w ^ e of there shall be paid in 

money, or delivered in articles necessary for her support, at the discretion 
of the executor of this my will, one hundred and fifty dollars annually, dur¬ 
ing her life, at such time and in such portions as he shall choose. 

I give to son of one thousand dollars, and order 

that he shall be charged with such amount of moneys as he shall be my 
debtor for, upon promissory notes, at my decease. 

I devise the wood-lot in which I bought of one 

to wife of above named, to hold to her for life, the 

remainder I give to the child or children of said who shall sur¬ 

vive her, his, her, or their heirs for ever. 


If shall be a member of my family at the time of my decease, 

she shall and may continue to resicfe in my dwelling-house and participate 
in the use of the stores and furniture, in common with others of my family, 
for the term of six months thereafter. 

It is my will that a debt of three hundred and thirty-two dollars, due me 
from of shall be cancelled. 

To each of those of the following named persons who shall be in my 
service at the time of my decease, I give one hundred dollars, viz: 


My will is that all annuities hereinbefore given shall take date from the 
day of the probate of this will ; and all legacies, not annuities, shall be paid 
within eight months from the same period. 

It is my will that all the capital or principal sums which shall be requisite 
to yield the several annuities above mentioned may, by my executor, be paid 
to to be held and managed by said corporation as trustees under 

this will: or, if the said executor and the parties beneficially interested 
therein shall so elect, said capital or principal sums, or any of them, may be 
placed in the hands of such trustee or trustees as shall, upon application to 
the Supreme Court of sitting in chancery, be appointed to receive 

the same, and perform this, my will, in that behalf. 


784 THE DISPOSAL OF PROPERTY BY WILL. 

I hereby authorize and empower whoever shall assume the execution of 
this will, to make sale of, and convey any parcel or parcels of real estate, 
of which I may die seized, for the purpose of raising any and all such sums 
of money as shall be required for the trust funds, annuities, and legacies 
hereinbefore directed to be created, given, and bequeathed. All such sales 
shall be made by public vendue, after notice thereof shall have been given 
in two or more newspapers printed in the city of for the term of 

fourteen days at least prior to such sales being made. 

All the residue of my estate, real, personal, and mixed, wheresoever it 
may be found, and of whatsoever it may consist, I give and devise unto 
to hold to him and his heirs forever. 

I hereby revoke all wills by me heretofore made, and constitute the said 
executor of this my last will. 

In Witness Whereof, I, the above-named testator, have hereunto set 
my hand and seal, this twenty-sixth day of in the year of our Lord 

eighteen hundred and 

[L.S.] 

Then and there signed, sealed, and published by the testator, 

as and for his last will, in the presence of us, who, at his request, in his 
presence, and in presence of each other, have hereto set our names as wit¬ 
nesses. 


ABSTRACT OF THE LAWS OF ALL THE STATES 
AND TERRITORIES CONCERNING WILLS. 

ALABAMA.—Every person of full age and sound mind may make a 
will. It must be in writing, signed by the testator, attested by at least two 
witnesses in the presence of the testator. Persons of the age of eighteen 
may dispose of personal property by will. 

ARIZONA.—Every person of full age may make a will. It must be in 
writing, signed by the testator and attested and subscribed in his presence 
by two or more witnesses. 


ABSTRACT OF WILLS. 


785 

ARKANSAS.— Every person over twenty-one years of age may devise 
real and personal property, and persons over eighteen may bequeath per¬ 
sonal property. The testator must subscribe his name at the end of the 
will, in the presence of two witnesses, and acknowledge' it to be his will, 
and the witnesses must sign at the request of the testator. When the 
entire body and signature of the will are in the handwriting of the testator 
it may be proved by the evidence of three witnesses to the handwriting and 
signature without subscribing witnesses. 

CALIFORNIA.— Every person over the age of eighteen, of sound 
mind, may dispose of property real or personal by will. Wills, unless 
olographic, must be subscribed at the end by the testator, or some person 
in his presence, and by his direction, in the presence of two attesting 
witnesses, or acknowledged in presence of such witnesses, and must be 
attested by two witnesses in the presence of, and at the request of, the 
testator. 

COLORADO.— Every person twenty-one years of age if a male, or 
eighteen years if a female, may dispose of property, real or personal, by 
will, and persons seventeen years of age may dispose of personal estate. 
All wills must be in writing, signed by the testator or some one in his pres¬ 
ence, at his request, and attested in his presence by two or more credible 
witnesses. 

CONNECTICUT.— Every person eighteen years of age, or more, and of 
sound mind, may make a will, and every devise passes the whole title unless 
clearly limited ; the will must be in writing, signed by the testator, and 
attested by three witnesses in his presence, and in presence of each other. 

DAKOTA.— Every person of the age of eighteen years, of sound mind, 
may make a will. Wills, unless olographic, must be signed by the testator, 
or some person in his presence, and by his direction in the presence of two 
witnesses, and declared by him to be his will, and must be subscribed by 
the attesting witnesses. 

DELAWARE.— Any person of the age of twenty-one years, and of 
sound mind, may make a will. The will must be in writing, signed by the 
testator, and attested and subscribed in his presence by two credible wit¬ 
nesses. 

DISTRICT OF COLUMBIA.— Any person twenty-one years of age if 
a male, or eighteen if a female, and of sound mind, may make a will. Wills 
of real estate, unless olographic, must be signed by the testator and attested 
and subscribed in his presence by three or more credible witnesses. Wills 
of personal property need not be witnessed. 

FLORIDA.— Every person of the age of twenty-one years, and of sound 
mind, may make a will, and such will must be signed by the testator, or by 
some one in his or her presence, and by his or her direction, and attested 
and subscribed in his or her presence, by three or more witnesses. Nuncu¬ 
pative wills must be proved by three witnesses present. 

50 


THE DISPOSAL OF PROPERTY BY WILL. 


786 

GEORGIA —Persons of fourteen years of age, and sound mind, may 
make a will. A married woman may make a will of her separate estate. 
Wills must be in writing, signed by the testator, or by some person in his 
presence, and by his express direction, and attested and subscribed by at 
least three competent witnesses. 

IDAHO.— There are no statutory requirements as to who may make 
wills or how they shall be made. 

ILLINOIS.— Any male of twenty-one years, or female of eighteen years, 
of sound mind and memory, may make a will. It must be in writing, signed 
by the testator, or by some one in his presence, and by his direction, and 
attested by two or more credible witnesses in the presence of the testator. 

INDIANA.— All persons, except infants and persons of unsound mind, 
may make a will. Every devise passes the testator’s whole interest. The 
will must be in writing, signed by the testator, or in his presence, and by 
his direction, and attested and subscribed in his presence by two or more 
competent witnesses. 

IOWA.— Testator must be of full age and sound mind. Personal prop¬ 
erty to the value of three hundred dollars may be bequeathed by a verbal 
(nuncupative) will, attested by two competent witnesses. All other wills 
must be in writing, witnessed by two competent witnesses, and signed by the 
testator, or by some one in his presence, and by his express direction. 

KANSAS.— Any person of full age, males of twenty-one, and females 
of eighteen, and sound mind, may make a will. It must be in writing, 
signed at the end by the testator, or by some one in his presence, and by 
his direction, and it must be attested in the presence of the testator, by two 
or more competent witnesses, who saw the testator sign, and heard him 
acknowledge the will for his last will and testament. 

KENTUCKY.— The testator must be of sound mind, and not under 
twenty-one years, nor a married woman ; but married women may make a 
will of their separate estate. It must be in writing, signed by the testator, 
or some one for him, and if not wholly written by himself, must be sub¬ 
scribed or acknowledged in the presence of at least two credible witnesses, 
who must sign in the presence of the testator. 

LOUISIANA.— Wills are of three kinds : 1. Nuncupative, or open 

testaments. 2. Mystic, or sealed testaments. 3. Olographic testaments. 
Nuncupative testaments, by public act, must be received by a notary public 
in the presence of three witnesses, residing where the will is executed, or 
five witnesses not residing in such place. It must be dictated by the tes¬ 
tator, and written by the notary as dictated, then read to the testator in the 
presence of the witnesses, and signed by the testator, and attested by all 
the witnesses. Nuncupative testaments, by private act, must be written by 
the testator himself, or from his dictation, in the presence of five witnesses 
residing in the place where the will was made, or seven not residing in such 
place, or it is sufficient if the testator presents the paper, on which he has 


ABSTRACT OF WILLS. 


787 

written the will, declaring that the paper contains his will. It must be read 
by the testator to the witnesses, and signed by the testator and all the 
witnesses. Mystic, or sealed testaments, are made as follows : The testator 
must sign his dispositions, and the paper then closed and'sealed. He shall 
then present it thus closed to a notary public and seven witnesses ; he shall 
declare it to be his last will and testament in their presence. The notary 
must then draw up the act of superscription on the same paper or envelope, 
and sign it, together with the testator and the witnesses. Olographic wills 
are entirely written, dated, and signed by the testator himself. No woman, 
male child under sixteen years of age, insane, deaf and dumb, or blind 
person can be a witness to a will. 

MAINE.— The testator must be of sound mind, and twenty-one years of 
age, and the will must be signed by the testator, or some one in his pres¬ 
ence, and at his request, and subscribed in his presence by three credible 
witnesses, not interested in the will. 

MARYLAND.— Every person of twenty-one years of age if a male, or 
eighteen years if a female, may make a will. The will must be in writing, 
signed by the testator or some one in his presence, and by his express 
direction, and attested and subscribed in his presence by two or more cred¬ 
ible witnesses. 

MASSACHUSETTS.— Every person of full age and sound mind may 
make a will, which must be in writing, signed by the testator, or by some 
one in his presence, and by his direction, and attested and subscribed in his 
presence by three or more competent witnesses. 

MICHIGAN.— The testator must be of full age, and sound mind. A 
devise passes the whole interest, unless specially limited. The will must 
be in writing, signed by the testator, or some one in his presence, and by 
his direction, and attested and subscribed in his presence by two or more 
competent witnesses. 

MINNESOTA.— The requirements of a will are the same as in Mich¬ 
igan. 

MISSISSIPPI.— The testator must be twenty-one years old, whether 
male or female, and of sound mind. The will must be signed by the testator, 
or some one in his presence, and by his direction, and, if not olographic, 
attested by two credible witnesses, who sign in presence of the testator. 

MISSOURI.— Males of eighteen years of age may make will of per¬ 
sonal property; and of twenty-one, of both real and personal estate. 
Females of eighteen may make will both of real and personal estate. The 
will must be in writing, signed by the testator, or some one by his direction, 
in his presence, and attested by two or more competent witnesses, who sign 
in the presence of the testator. 

MONTANA.— Every person, over the age of eighteen, and of sound 
mind, may dispose of property, real or personal, by will. The will must be 


THE DISPOSAL OF PROPERTY BY WILL . 


788 

signed by the testator, or by some person in his presence, and by his express 
direction, and attested and subscribed in his presence by two or more com¬ 
petent witnesses. 

NEBRASKA. — Any person of full age, and sound mind, may make a 
will. Wills must be in writing, signed by the testator, or some one in his 
presence, and by his direction, and attested and subscribed in the presence 
of the testator by two or more competent witnesses. 

NEVADA. — The testator must be eighteen years of age and of sound 
mind. The will must be in writing, signed by the testator, and sealed with 
his seal, or by some one in his presence, by his direction, and attested in 
the presence of the testator, by at least two competent witnesses. 

NEW HAMPSHIRE. — Any person of twenty-one years of age and 
sound mind, may make a will, to be in writing, signed and sealed by tes¬ 
tator, or some one in his presence, and by his direction, and attested and 
subscribed by three or more credible witnesses. 

NEW JERSEY. —'Testator must be twenty-one years of age and of 
sound mind. All wills, after the year 1850, must be in writing, signed by 
the testator, or the signature acknowledged by him, and he must declare 
the writing to be his last will in the presence of two witnesses, who are 
present at the same time, and who must subscribe the same in presence of 
the testator. 

NEW MEXICO. — Males over fourteen years of age, and females over 
twelve, and of sound mind, may make wills. Wills may be written or ver¬ 
bal. If written, they must be signed by the testator, or some person for 
him, and attested by three or more credible witnesses. Verbal wills must be 
attested by the same number of witnesses, and two witnesses must testify 
that testator was of sound mind and judgment. Witnesses must all be 
present, see and hear testator speak, and each must understand clearly and 
distinctly every part of the will. 

NEW YORK. — Males of eighteen and females of sixteen, may make 
wills of personal property, but only persons of twenty-one years can devise 
real estate. Wills must be subscribed by the testator at the end, in the 
presence of each of the attesting witnesses, or acknowledged by him in their 
presence. There must be at least two witnesses who sign their names at 
the end, at the request of the testator; they should add also their place of 
business. There are certain statutory restrictions as to the amount of be¬ 
quests to religious or charitable institutions. 

NORTH CAROLINA. — The testator must be twenty-one years of age, 
and of sound mind. The will must be in writing, signed by the testator, or 
some one in his presence, and by his direction, and subscribed in his pres¬ 
ence by at least two disinterested witnesses. Olographic wills, signed by 
the testator, and found among his valuable papers and effects, or lodged in 


ABSTRACT OF WILLS. y$g 

the hands of some person for safe keeping, are allowed, and the handwriting 
must be proved by three witnesses. 

OHIO.— The testator must be of full age and sound mind, and the will 
must be in writing, signed at the end by the testator, or some one in his 
presence and by his direction, and attested by two or more competent wit¬ 
nesses, who saw the testator sign, and heard him acknowledge the will. 

OREGON.— Every person twenty-one years of age, may dispose of 
property, real and personal, by will, and every person of eighteen may be¬ 
queath goods and chattels. The will must be in writing, signed by the 
testator, or some one for him, and attested by two or more competent wit¬ 
nesses in his presence. 

PENNSYLVANIA.— Any person of full age and sound mind may 
make a will. It must be in writing, signed by the testator, or some one in 
his presence for him, and attested by two or more competent witnesses. 

RHODE ISLAND.— Persons eighteen years of age, and of sound mind, 
may bequeath personal property, and persons of twenty-one years may 
devise real estate. The will must be in writing, signed by the testator, or 
some one for him, and attested and subscribed in his presence, by two or 
more witnesses. 

SOUTH CAROLINA.— Persons of twenty-one years of age may devise 
real estate, and persons under twenty-one, but of years of discretion, may 
bequeath personal property. Three or more credible witnesses are neces¬ 
sary, who must sign in presence of the testator. The will must be in writ¬ 
ing, and signed by the testator. 

TENNESSEE.— Any person of sound mind, and twenty-one years of 
age, may dispose of real estate by will. Males at fourteen, and females at 
twelve, may bequeath personal property. Wills of real estate must be sub¬ 
scribed by the testator, or some one for him, and attested and subscribed in 
his presence, by at least two witnesses. Olographic wills found among the 
testator’s valuable papers, or deposited for safe keeping, are allowed, if the 
handwriting is proved by three witnesses. No subscribing witnesses are 
necessary to wills of personality, but two witnesses or equivalent testimony 
are necessary to establish them. 

TEXAS.— Testator must be twenty-one years of age, and sound mind, 
and the will must be signed by testator, or for him in his presence, and by his 
c’irection, and if not olographic, attested by two or more credible witnesses 
over fourteen years of age. 

UTAH.— Any person of the age of eighteen years, and of sound mind, 
may dispose of property, real and personal, by will. The will must be in 
writing, subscribed by the testator, and attested in his presence by two or 
more witnesses. 

VERMONT.— Every person of full age, and sound mind, may make a 


THE DISPOSAL OF PROPERTY BY WILL. 


790 

will. A will must be in writing, signed by the testator, or for him, in his 
presence, and by his direction, and attested and subscribed by three or 
more credible witnesses, in his presence, and in presence of each other. 

VIRGINIA.— Every person twenty-one years of age, and of sound 
mind, may make a will of real estate, and persons of eighteen years may 
bequeath personal property. The will must be signed by the testator, or 
some one for him, by his direction, and in his presence, and unless olo¬ 
graphic, attested in his presence, and in presence of each other, by two or 
more competent witnesses. 

WASHINGTON TERRITORY.— Every male above the age of twenty- 
one years, and every female above the age of eighteen, may dispose of pro¬ 
perty, real and personal, by will. The will must be in writing, signed by the 
testator, or by some person under his direction, and attested by two or more 
competent witnesses, subscribing their names in the presence of the testator. 

WEST VIRGINIA.— The testator must be twenty-one years of age, 
and of sound mind. The will must be in writing, signed by the testator, or 
by some one for him, in his presence, and by his direction, and unless olo¬ 
graphic, the signature must be made and the will acknowledged in the pres¬ 
ence of two competent witnesses, present at the same time, and who sub¬ 
scribe in presence of the testator. 

WISCONSIN.— Every person of full age, and any married woman of 
the age of eighteen years, may make a will. Wills must be in writing, 
signed by the testator, or some one in his presence, and by his direction, 
and attested and subscribed in his presence by two or more competent 
witnesses. 

WYOMING.— Any person of full age, and sound mind, may make a 
will. The will must be in writing, signed by the testator, or by some other 
person, in his presence, and by his direction, and attested by two competent 
witnesses. 


CHAPTER XXXVIII. 

EXECUTORS AND ADMINISTRATORS. 

An executor is a person named in the will of a deceased 
person, to settle his or her estate. There may be one or more ; 
and they may be male or female. An administrator is one 



EXECUTORS AND ADMINISTRATORS. 


791 

appointed by the court to settle the estate of a deceased person. 
If the deceased left a will, but did not appoint an executor, or 
the appointed executor refuses to act, or resigns, or dies, or for 
any reason fails to act, an administrator is appointed by the 
court “ with the will annexed.” The husband of a deceased 
wife, or the wife of a deceased husband, has generally the right 
to be appointed administrator; after them the next of kin in the 
order of relationship. But the courts have some discretion in 
the matter. 

They act as the personal representatives of the deceased, 
having in their hands his means, for the purpose of discharging 
his liabilities, or executing his contracts, and of carrying into 
effect his will, if he have left one ; and, in general, they are liable 
only so far as these means (called assets), in their hands, are 
applicable to such a purpose. But they may become personally 
liable; and a clause in the statute of frauds refers to this sub¬ 
ject, making them not liable to pay any debt out of their own 
means, unless they give a promise to that effect, in writing, 
signed by them. 

In this country, the judicial officer, or judge who has the 
charge of the settlement of estates, of the proof of wills, and of 
proceedings under them, is generally called the Judge of Pro¬ 
bate. But in some States he is called Surrogate, Register or 
Registrar of Wills or of Probate, Judge of the Orphan’s Court, 
etc. His powers and duties are very similar all over the coun¬ 
try. From his decrees or decisions an appeal may generally be 
taken, by a party who thinks himself aggrieved, to the Supreme 
Judicial Court. The Judge of Probate is usually a county offi¬ 
cer, and his jurisdiction is limited to his county. 

If an executor or administrator receives, as such, a promis¬ 
sory note or bill of the deceased, and indorses the same with his 
name, without adding “executor,” or “administrator,” he is 
liable upon it personally. If he makes a note or bill, signing it 
“as executor,” he is personally liable, unless he expressly limits 
his promise to pay, by the words, “ out of the assets of my tes¬ 
tator,” or, “ if the assets be sufficient,” or in some equivalent 
way; but a note or bill so qualified would not be negotiable, 
because on condition. If an executor or administrator submits 


EXECUTORS AND ADMINISTRATORS . 


792 

a disputed question to arbitration, in general terms, and without 
an express limitation of his liability, and the arbitrators award 
that he shall pay a certain sum, he is liable to pay it whether he 
has assets or not. But if the award be merely that a certain 
sum is due from the estate of the deceased, without saying that 
the executor or administrator is to pay it, he is not precluded from 
denying that he has assets. 

Where a contract of the deceased is of an executory nature, and 
the personal representative can fairly and sufficiently execute 
all that the deceased could have done, he may do so, and enforce 
the contract. But where an executory contract is of a strictly 
personal nature—as, for example, with an author for a specified 
work, or with an artist for a painting, the death of the writer 
before his book is completed, or of the artist before the painting 
is finished, absolutely determines the contract, unless what 
remains to be done—as, for example, in the case of a book, the 
preparing of an index, or table of contents, etc., can certainly 
be done as well and to the same purpose and effect by another. 

If executors or administrators pay away money of the de¬ 
ceased by mistake, or enter into contracts for carrying on his 
business for the benefit of his estate, and to wind up his affairs, 
they may sue on such contracts either in their individual or 
their representative capacities; but they should sue in the latter 
capacity, in order to avoid a set-off against them of their indi¬ 
vidual debts. 

The title of an administrator does not exist until the grant 
of administration. Then it goes back to the death of the de¬ 
ceased ; but only in order to protect the estate, and not for any 
other purpose. And if an agent sells goods of the deceased, 
after his death, and in ignorance of his decease, the adminis¬ 
trator may adopt the contract, and sue upon it. 

On the death of one of several executors, either before or 
after probate, the entire right of representation survives to the 
others. But if an administrator dies, or a sole executor dies, no 
interest and no right of representation is transmitted to his per¬ 
sonal representatives. 

An executor derives his authority from the will, and his 
duties begin at the death of the testator. They may be stated 
thus: 


EXECUTORS AND ADMINISTRA TORS. 


7 93 

1. He should cause the deceased to be buried in a suitable 
manner. 

2. He should offer the will for probate as soon' as he can with 
a reasonable regard to his convenience ; and in proving the will, 
filing bonds, giving notice, making and returning an inventory, 
and the like, he must conform to the law of the State and the 
rules of the probate; and he will obtain at the office sufficient 
information on all these points. 

3. He must collect the property, and after paying the debts, 
he must distribute or dispose of the remainder as the will 
directs. 

4. He must render his account from time to time, until a final 
settlement of the estate is made, and will be directed at the Pro¬ 
bate Office when and how to file his accounts. 

An administrator derives his authority from the court. But 
his duties are then substantially similar to those of an executor; 
excepting, that he must distribute and dispose of the estate as 
the law requires, as he has no will to direct him, unless he is an 
administrator with the will annexed. The debts must be paid in 
a certain order. This is not precisely the same in all the States; 
but it is very generally as follows : 

1. Funeral expenses, charges of the last sickness, and pro¬ 
bate charges. 

2. Debts due to the United States. 

3. Debts due to the State in which the deceased had his 
home. 

4. Any liens attaching to the property by law. 

5. To creditors generally. 

If the estate is insufficient to pay all the debts due from it, as 
soon as the executor or administrator finds this to be the case, 
he should represent the case as insolvent at the Probate 
Court, and thereafter follow the requirements of the law of the 
State and the rules of the Probate Office, in reference to insol¬ 
vent estates of deceased persons. 

In most of the States, all the necessary forms or instruments 
are given to applicants at the Probate Office. 


794 


GUARDIANS. 


CHAPTER XXXIX. 

GUARDIANS. 

Guardians of all descriptions are treated by courts as 
trustees ; and in almost all cases they are required to give secu¬ 
rity for the faithful discharge of their duty, unless the guardian 
be appointed by will, and the testator has exercised the power 
given him by statute, of requiring that the guardian shall not 
be called upon to give bonds. But, even in this case, such 
testamentary provision is wholly personal; and if the individ¬ 
ual dies, refuses the appointment, or resigns it, or is removed 
from it, and a substitute is appointed by court, this substitute 
must give bonds. 

The guardian is held, in this country, to have only a naked 
authority, not coupled with an interest. His possession of the 
property of his ward is not such as gives him a personal interest, 
being only for the purpose of agency. But for the benefit of 
his ward he has a very general power over it. He manages and 
disposes of the personal property at his own discretion, although 
it is safer for him to obtain the power of the court for any 
important measure. He may lease the real estate, if appointed 
by will or court; he cannot, however, sell the real estate with¬ 
out leave of the proper court. Nor should he convert the 
personal estate into real, without such leave. 

As trustee, a guardian is held to a strictly honest discharge 
of his duty, and cannot act in relation to the subject of his 
trust for his own personal benefit, in any contract whatever. 
And if a benefit arises thereby, as in the settlement of a debt 
due from the ward, this benefit belongs wholly to the ward. 
And it has been held that if a guardian makes use of his own 
money to erect buildings on the land of his ward, without 
having an order of the court therefor, he cannot charge the 
same in account with his ward, or recover the amount from 
the ward. But we doubt whether a rule so severe would be 
applied unless for special reasons. He must neither make nor 
suffer any waste of the inheritance, and is held very strictly to 
a careful management of all personal property. He is respon- 


GUARDIANS. 


795 

sible not only for any misuse of the ward’s money or stock, but 
for letting it lie idle; and if he does so without sufficient cause, 
he must allow the ward interest or compound interest in his 
account. 

To secure the proper execution of his trust, he is not only 
liable to an action by the ward, after the guardianship termi¬ 
nates, but, during its pendency, the ward may call him to 
account by his next friend, or by a guardian appointed by the 
court for the action. The courts have gone so far as to set 
aside transactions which took place soon after the ward came 
of age, and which were beneficial only to the former guardian, 
on the presumption that undue influence was used, and on the 
ground of public utility and policy. 

A guardian cannot, by his own contract, bind the person or 
estate of his ward; but if he promise, on a sufficient considera¬ 
tion, to pay the debt of his ward, he is personally bound by his 
promise, although he expressly promises as guardian. And it 
is a sufficient consideration if such promise discharge the debt 
of the ward. And a guardian who thus discharges the debt of 
his ward may lawfully indemnify himself out of the ward’s 
estate, or if he be discharged from his guardianship, he may 
have an action against the ward for money paid for his use. 
An action will not lie against a guardian on a contract made by 
the ward, but must be brought against the ward, and be defended 
by the guardian. 

The guardianship is a trust so strictly personal, or attached 
to the individual, that it cannot be transferred from him, either 
by his own assignment or devise, or by inheritance or succes¬ 
sion. 

A married woman cannot become a guardian without the 
consent of her husband; but with that she may. A single 
woman who is a guardian generally loses her guardianship by 
marriage ; but she may be re-appointed. In some States, she 
loses it by statute; in others, not. 


796 


INTERPRETATION OF CONTRACTS. 


CHAPTER XL. 

CONSTRUCTION AND INTERPRETATION OF CONTRACTS. 

SECTION I. 

GENERAL PURPOSE AND PRINCIPLES OF CONSTRUCTION. 

The importance of a just and rational construction of every 
contract and every instrument, is obvious. If any one contract 
is properly construed, justice is done to the parties directly 
interested therein. But the rectitude, consistency, and uni¬ 
formity of all construction, enables all parties to do justice to 
themselves. For then all parties, before they enter into con* 
tracts, or make or accept instruments, may know the force and 
effect of the words they employ, of the precautions they use, 
and of the provisions which they make in their own behalf, or 
permit to be made by other parties. 

It is obvious that this consistency and uniformity of com 
struction can exist only so far as construction is governed by 
fixed principles, or, in other words, is matter of law. And hence 
arises the very first rule; which is, that what a contract means 
is a question of law. It is the court, therefore, that determines 
the construction of a contract. They do not state the rules and 
principles of law by which the jury are to be bound in constrm 
ing the language which the parties have used, and then direct 
the jury to apply them at their discretion to the question of 
construction ; nor do they refer to these rules unless they think 
proper to do so for the purpose of illustrating and explaining 
their own decision. But they give to the jury, as matter of 
law, what the legal construction of the contract is, and this the 
jury are bound absolutely to take. 

A distinction is to be observed between the construction of 
a contract and the correction of a mistake. For, if it were in 
proof that the parties had intended to use one word, and that 
another was in fact used by a mere verbal error in copying or 
writing, such error might be corrected by a court of equity upon 
a bill filed for that purpose, and the instrument so corrected 



SOME GENERAL RULES OF CONSTRUCTION. ygy 

would be looked upon as the contract which the parties had 
made, and be interpreted accordingly. But this jurisdiction is 
confined strictly to those cases where different "language has 
been used from that which the parties intended. For if the 
words employed were those intended to be used, but their actual 
meaning was totally different from that which the parties sup¬ 
posed and intended them to bear, still this actual meaning would, 
generally, if not always, be held to be their legal meaning. 
Upon sufficient proof that the contract did not express the mean¬ 
ing of the parties, it might be set aside; but a contract which 
the parties intended to make, but did not make, cannot be set 
up in the place of one which they did make, but did not intend 
to make. 

SECTION II. 

SOME OF THE GENERAL RULES OF CONSTRUCTION. 

The subject-matter of the contract is to be fully considered. 
There are very many words and phrases which have one mean¬ 
ing in ordinary narration or composition, and quite another 
when they are used as technical words in relation to some spe¬ 
cial subject; and it is obvious that, if this be the subject-matter 
of the contract, it must be supposed that the words are used in 
this specific and technical sense. 

So, too, the situation of the parties at the time, and of the 
property which is the subject-matter of the contract, and the 
intention and purpose of the parties in making the contract, 
will often be of great service in guiding the construction, be¬ 
cause this intention will be carried into effect so far as the rules 
of language and the rules of law will permit. So the moral 
rule may be applicable, that a party will be held to that mean¬ 
ing which he knew the other party supposed the words to bear, 
if this can be done without making a new contract for the 
parties. 

Indeed, the very idea and purpose of construction imply a 
previous uncertainty as to the meaning of the contract; for 
where this is clear and unambiguous, there is no room for con¬ 
struction, and nothing for construction to do. A court would 
not, by construction of a contract, defeat the express stipulations 


INTERPRETATION OF CONTRACTS. 


798 

of the parties. And if a contract is false to the actual meaning 
and purpose of the parties, or of either party, the remedy does 
not lie in construction ; but, if the plaintiff be the injured party, 
in assuming the contract to be void, and establishing his 
rights by other and appropriate means; or, if the defendant 
be injured by defending against the contract on the ground of 
fraud or mistake, if the facts support such a defence. 

A construction which would make the contract legal is pre¬ 
ferred to one which would have an opposite effect; and by an 
extension of the same principle, where certain things are to be 
done by the contract which the law has regulated in whole or in 
part, the contract will be held to mean that they should be 
done in such a way as would be either required or indicated by 
the law. 

The question may be whether the words used should be 
taken in a comprehensive or a restricted sense; in a general or 
a particular sense; in the popular and common, or in some 
unusual and peculiar sense. In all these cases the court will 
endeavor to give to the contract a rational and just construe- 
tion ; but the presumption—of greater or less strength, accord¬ 
ing to the language used, or the circumstances of the case— 
is in favor of the comprehensive over the restricted, the 
general over the particular, the common over the unusual 
sense. 

It is a rule that the whole contract should be considered in 
determining the meaning of any or of all its parts. The reason 
is obvious. The same parties make all the contract, and may 
be supposed to have had the same purpose and object in view 
in all of it, and if this purpose is more clear and certain in some 
parts than in others, those which are obscure may be illustrated 
by the light of those which are clear. Thus, the condition of a 
bond may help to explain the obligatory part. And the recital 
in a deed or agreement has sometimes great influence in the 
interpretation of other parts of the instrument. The contract 
may be contained in several instruments, which, if made at the 
same time, between the same parties, and in relation to the 
same subject, will be held to constitute but one contract, and 
the court will read them in such order of time and priority as 


SOME GENERAL RULES OF CONSTRUCTION 


799 

will carry into effect the intention of the parties, as the same 
may be gathered from all the instruments taken together. And 
the recitals in each may be explained or corrected by a refer¬ 
ence to any other, in the same way as if they were only several 
parts of one instrument. 

Another rule requires that the contract should be supported 
rather than defeated. The court cannot, however, through a 
desire that there should be a valid contract between the parties, 
undertake to reconcile conflicting and antagonistic expressions, 
of which the inconsistency is so great that the meaning of the 
parties is necessarily uncertain. Nor where the language dis¬ 
tinctly imports illegality, should they construe it in a different 
and a legal sense, for this would be to make a contract for the 
parties which they have not made themselves. But where there 
is room for it, the court will give a rational and equitable inter¬ 
pretation, which, though neither necessary nor obvious, has the 
advantage of being just and legal, and supposes a lawful con¬ 
tract which the parties may fairly be regarded as having made. 
So, for the same reason, all the parts of the contract will be 
construed in such a way as to give force and validity to all of 
them, and to all of the language used, where that is possible. 

All legal instruments should be grammatically written, and 
should be construed according to the rules of grammar. But 
this is not an absolute rule of law. On the contrary, it is so far 
immaterial in what part of an instrument any clause is written* 
that it will be read as of any place and with any context, and, if 
necessary, transposed, in order to give effect to the certain 
meaning and purpose of the parties. Still this will be done only 
when their certain and evident intent requires it. Inaccuracy 
or confusion in the arrangement of the parts and clauses of an 
instrument is, therefore, always dangerous; because the intent 
may in this way be made so uncertain as not to admit of a 
remedy by construction. Generally, all relative words are read 
as referring to the nearest antecedent. But this rule of grammar 
is not a rule of law, where the whole instrument shows plainly 
that a reference was intended to an earlier antecedent. 

So, it is a general proposition, that where clauses are repug¬ 
nant and incompatible, the earlier prevails in deeds and other 


8oo 


INTERPRETATION OF CONTRACTS. 


instruments among the living, if the inconsistency be not so 
great as to avoid the instrument for uncertainty. But in the 
construction of wills it has been said that the latter course pre¬ 
vails, on the ground that it is presumed to be a subsequent 
thought or purpose of the testator, and therefore to express his 
last will. 

An inaccurate description, and even a wrong name of a per¬ 
son, will not necessarily defeat an instrument. But it is said 
that an error like this cannot be corrected by construction, unless 
there is enough beside in the instrument to identify the person, 
and thus to supply the means of making the correction. That 
is, taking the whole instrument together, there must be a rea¬ 
sonable certainty as to the person. It is also said that only 
those cases fall within the rule in which the description so far 
as it is false applies to no person, and so far as it is true applies 
only to one. But even if the name or description, where erro¬ 
neous, apply to a wrong person, we think the law would permit 
correction of the error by construction, where the instrument, 
as a whole, showed certainly that it was an error, and also showed, 
with equal certainty how the error might and should be cor¬ 
rected. 

Instruments are often used which are in part printed and in 
part written; that is, they are printed with blanks, which are 
afterwards filled up; and the question may occur, to which a 
preference should be given. The general answer is, to the 
written part. What is printed is intended to apply to large 
classes of contracts, and not to any one exclusively ; the blanks 
are left purposely, that the special statements or provisions 
should be inserted, which belong to this contract and not to 
others, and thus discriminate this from others. And it is reason¬ 
able to suppose that the attention of the parties was more closely 
given to those phrases which they themselves selected, and which 
express the especial particulars of their own contract, than to 
those more general expressions which belong to all contracts of 
this class. But if the whole contract can be construed together, 
so that the written words and those printed make an intelligible 
contract, this construction should be adopted. Because the 
intention of the parties is presumed to be “ alive and active 


THE PRESUMPTIONS OF LAW. 


801 

throughout the whole instrument, and that no averments are 
anywhere inserted without meaning and without use.” 

SECTION III. 

ON THE PRESUMPTIONS OF LAW. 

There are some general presumptions of law which may be 
considered as affecting the construction of contracts. 

Thus, it is a presumption of law that parties to a simple con¬ 
tract intended to bind not only themselves, but their personal 
representatives ; and such parties may sue on a contract, although 
not named therein. Hence, as we have seen, executors, though 
not named in a contract, are liable, so far as they have assets, 
for the breach of a contract which was broken in the lifetime of 
their testator. And if the contract was not broken in his life¬ 
time, they must not break it, but will be held to its performance, 
unless this presumption is overcome by the nature of the con¬ 
tract ; as where the thing to be done required the personal skill 
of the testator himself. So, too, if several persons stipulate for 
the performance of any act, without words of severalty, the 
presumption of law is here that they intended to bind themselves 
jointly. But this presumption also might be rebutted by the 
nature of the work to be done, if it were certain that separate 
things were to be done by separate parties, who could not join 
in the work. 

It is also a legal presumption that every grant carries with 
it whatever is essential to the use and enjoyment of the grant. 
But this rule applies more strongly to grants of real estate than 
to transfers of personal property. Thus, if land be granted to 
another, a right of way to the land will go with the grant. 

Where anything is to be done, as goods to be delivered, or 
the like, and no time is specified in the contract, it is then a 
presumption of law that the parties intended and agreed that 
the thing should be done in a reasonable time. But what is a 
reasonable time is a question of law for the court. They will 
consider all the facts and circumstances of the case in determin¬ 
ing this, and if any facts bearing upon this point are in question 
it will be the province of the jury to settle those facts, although 
51 


802 INTERPRETA TION OF CONTRACTS. 

the influence of the facts when they are ascertained, upon the 
question of reasonableness of time, remains to be determined 
by the court. 

SECTION IV. 

OF THE EFFECT OF CUSTOM OR USAGE. 

We have already had occasion to remark, that a custom 
which may be regarded as appropriate to the contract and com¬ 
prehended by it, has often very great influence in the construction 
of its language. The general reason of this is obvious enough. 
If parties enter into a contract, by virtue whereof something is 
to be done by one or both, and this thing is often done in their 
neighborhood, or by persons of like occupation with themselves, 
and is always done in a certain way, it must be supposed that 
they intended it should be done in that way. The reason for 
this supposition is nearly the same as that for supposing that 
the common language which they use is to be taken in its com¬ 
mon meaning. And the rule that the meaning and intent of 
the parties govern, wherever this is possible, comes in and 
operates. Hence an established custom may add to a contract 
stipulations not contained in it; on the ground that the parties 
may be supposed to have had these stipulations in their minds 
as a part of their agreement, when they put upon paper or 
expressed in words the other part of it. So custom may control 
and vary the meaning of words; giving even to such words as 
those of number a sense entirely different from that which they 
commonly bear, and which indeed by the rules of language, and 
in ordinary cases, would be expressed by another word. 

This influence of custom was first admitted in reference to 
mercantile contracts. And indeed almost the whole of the law- 
merchant, if it has not grown out of custom sanctioned by courts 
and thus made law, has been very greatly modified in that way. 
For illustration of this, we may refer to the law of bills and notes, 
insurance, and contracts of shipping generally. And although 
doubts have been expressed whether it was wise or safe to per¬ 
mit express contracts to be controlled, or, if not controlled, 
affected by custom in the degree in which it seems now to be 
established that they may be, this operation of custom is now 


THE EFFECT OF CUSTOM OR USAGE. 


803 

fixed by law, and extended to a vast variety of contracts; and 
indeed to all to which its privileges properly apply. And quali¬ 
fied and guarded as it is, it seems to be no more than reasonable. 
In fact, it may be doubted whether a large portion of the com¬ 
mon law of England and of this country rests upon any other 
basis than that of custom. The theory has been held, that the 
actual foundation of most ancient usages was statute law, which 
the lapse of time has hidden out of sight. This is not very 
probable as a fact. The common law is every day adopting as 
rules and principles the mere usages of the community, or of 
those classes of the community who are most conversant with 
the matters to which these rules relate ; and it is certain that a 
large proportion of the existing law first acquired force in this 
way. 

Other facts must be considered; as how far the meaning 
sought to be put on the words departs from their common mean¬ 
ing as given by the dictionary, or by general use, and whether 
other makers of this article used these words in various senses, 
or used other words to express the alleged meaning. Because 
the main question is always this: Can it be said that both par¬ 
ties ought to have used these words in this sense, and that each 
party had good reason to believe that the other party so under¬ 
stood them ? 

Custom and usage are very often spoken of as if they were 
the same thing. But this is a mistake. Custom is the thing 
to be proved, and usage is the evidence of the custom. Whether 
a custom exists is a question of fact. But in the proof of this 
fact questions of law of two kinds may arise. One, whether the 
evidence is admissible, which is to be settled by the common 
principles of the law of evidence. The other, whether the facts 
stated are legally sufficient to prove a custom. If one man tes¬ 
tified that he had done a certain thing once, and had heard that 
his neighbor had done it once, this evidence would not be given 
to the jury for them to draw from it the inference of custom if 
they saw fit, because it would be legally insufficient. But if 
many men testified to a uniform usage within their knowledge, 
and were uncontradicted, the court would say whether this usage 
was sufficient in quantity and quality to establish a custom, and 


INTERPRETATION OF CONTRACTS. 


804 

if they deemed it to be so, would instruct the jury, that, if they 
believed the witnesses, the custom was proved. The cases on 
this subject are numerous. But no definite rule as to the proof 
of custom can be drawn from them, other than that derivable 
from the reason on which the legal operation of custom rests; 
namely, that the parties must be supposed to have contracted 
with reference to it. 

As a general rule, the knowledge of a Custom must be 
brought home to a party who is to be affected by it. But if it 
be shown that the custom is ancient, very general and well 
known, it will often be a presumption of law that the party had 
knowledge of it; although, if the custom appeared to be more 
recent, and less generally known, it might be necessary to es¬ 
tablish by independent proof the knowledge of this custom by 
the party. One of the most common grounds for inferring 
knowledge in the parties, is the fact of their previous similar 
dealings with each other. The custom might be so perfectly 
ascertained and universal, that the party’s actual ignorance 
could not be given in proof, nor assist him in resisting a custom. 
If one sold goods, and the buyer being sued for the price, de¬ 
fended on the ground of a custom of three months’ credit, the 
jury might be instructed that the defence was not made out 
unless they could not only infer from the evidence the existence 
of the custom, but a knowledge of it by the plaintiff. But if the 
buyer had given a negotiable note at three months, no ignor¬ 
ance of the seller would enable him to demand payment with¬ 
out grace, even where the days of grace were not given by 
statute. In such a case, the reason of the law of custom—that 
the parties contracted with reference to it—seems to be lost 
sight of. But in fact the custom in such a case has the force of 
law; an ignorance of which cannot be supposed, and, if it be 
proved, it neither excuses any one, nor enlarges his rights. 

No custom can be proved, or permitted to influence the con¬ 
struction of a contract, or vary the rights of parties, if the cus¬ 
tom itself be illegal. For this would be to permit parties to 
break the law because others had broken it, and then to found 
the rights upon their own wrong-doing. 

Neither would courts sanction a custom by permitting its 


ADMISSIBILITY OF INTRINSIC EVIDENCE. 805 

operation upon the rights of parties, which was in itself wholly 
unreasonable. In relation to a law, properly^ enacted, this 
inquiry cannot be made in a country where the judicial and leg¬ 
islative powers are properly separated. But in reference to 
custom, which is a quasi law, and has often the effect of law, 
but has not its obligatory power over the court, the character 
of the custom will be considered ; and if it be altogether foolish, 
or mischievous, the court will not regard it; and if a contract 
exist which only such a custom can give effect to, the contract 
itself will be declared void. 

Lastly, it must be remembered that no custom, however uni¬ 
versal, or old, or known, unless it has actually passed into law, 
has any force over parties against their will. Hence, in the 
interpretation of contracts, it is an established rule, that no cus¬ 
tom can be admitted which the parties have seen fit expressly 
to exclude. Thus, to refer again to the custom of allowing 
grace on bills and notes on time, there is no doubt that the par¬ 
ties may agree to waive this ; and even the statutes which have 
made this custom law, permit this waiver. And not only is a 
custom inadmissible which the parties have expressly excluded, 
but it is equally so if the parties have excluded it by a necessary 
implication ; as by providing that the thing which the custom 
affects shall be done in a different way. For a custom can no 
more be set up against the clear intention of the parties than 
against their express agreement; and no usage can be incorpo¬ 
rated into a contract which is inconsistent with the terms of the 
contract. 

Where the terms of a contract are plain, usage, even 
under that very contract, cannot be permitted to affect mate¬ 
rially the construction to be placed upon it; but when it is 
ambiguous, a long-continued usage may influence the judg¬ 
ment of the court, by showing how the contract was understood 
by the parties to it. 

SECTION V. 

OF THE ADMISSIBILITY OF EXTRINSIC EVIDENCE IN THE INTERPRETA¬ 
TION OF WRITTEN CONTRACTS. 

It is very common for parties to offer evidence external to 
the contract in aid of the interpretation of its language. The 


8o 6 


INTERPRETATION OF CONTRACTS. 


general rule is, that such evidence cannot be admitted to con¬ 
tradict or vary the terms of a valid written contract; or, as the 
rule is expressed by writers on the Scotch law, “ writing cannot 
be cut down or taken away by the testimony of witnesses.” 
The rule is often expressed with sufficient exactness for ordi¬ 
nary purposes, in this way : “ Evidence may be admitted to ex¬ 
plain a written contract, but not to contradict it.” There are 
many reasons for this rule. One is, the general preference of 
the law for written evidence over unwritten ; or, in other words, 
for the more definite and certain evidence over that which is 
less so; a preference which not only makes written evidence 
better than unwritten, but classifies that which is written. For 
if a negotiation be conducted in writing, and even if there be a 
distinct proposition in a letter, and a distinct assent, making a 
contract, and then the parties reduce this contract to writing, 
and both execute the instrument, this instrument controls the 
letters, and they are not permitted to vary the force and effect 
of the instrument, although they may sometimes be of use in 
explaining its terms. Another is, the same desire to prevent 
fraud which gave rise to the statute of frauds; for as that 
statute requires that certain contracts shall be in writing, so 
this rule refuses to permit contracts which are in writing to be 
controlled by merely oral evidence. But the principal cause 
alleged in the books and cases is, that when parties, after what¬ 
ever conversation or preparation, at last reduce their agreement 
to writing, this may be looked upon as the final consummation 
of their negotiation, and the exact expression of their purpose. 
And all of their earlier agreements, though apparently made while 
it all lay in conversation, which is not now incorporated into 
their written contract, may be considered as intentionally re¬ 
jected. The parties write the contract when they are ready to 
do so, for the very purpose of including all that they have finally 
agreed upon, and excluding everything else, and making this 
certain and permanent. And if every written contract were 
held subject to enlargement, or other alteration, according to 
the testimony which might be offered on one side or the other 
as to previous intention, or collateral facts, it would obviously 
be of no use to reduce a contract to writing, or to attempt to 
give it certainty and fixedness in any way. 


ADMISSIBILITY OF INTRINSIC EVIDENCE. 


807 

It is nevertheless certain, that some evidence from without 
must be admissible in the explanation or interpretation of every 
contract. If the agreement be, that one party -shall convey to 
the other, for a certain price, a certain parcel of land, it is only 
by extrinsic evidence that the persons can be identified who claim 
or are alleged to be parties, and that the parcel of land can be 
ascertained. It may be described by bounds, but the question 
then comes, where are the streets, or roads, or neighbors, or 
monuments referred to in the description ; and it may sometimes 
happen that much evidence is necessary to identify these per¬ 
sons or things. Hence, we may say, as the general rule, that 
as to the pa? ties or the subject-matter of a contract, extrinsic evi¬ 
dence may and must be received and used to make them certain, 
if necessary for that purpose. But as to the terms, conditions, 
and limitations of the agreement, the written contract must 
speak exclusively for itself. Hence, too, a false description of 
person or thing has no effect in defeating a contract, if the error 
can be distinctly shown and perfectly corrected, by other mat¬ 
ter in the instrument. 

A written contract, of which the memorandum satisfies the 
statute of frauds, is open to evidence to show that certain essen¬ 
tials of the actual contract are not in the memorandum, if the 
effect of the evidence is, not to vary the written contract, but 
to show that no such contract was ever made. 

Recitals in an instrument may sometimes be qualified or con¬ 
tradicted by extrinsic evidence; by “ recitals ” are meant the 
narrative of the circumstances or purposes which have induced 
the parties to make the contract. So the date of an instrument, 
or if there be no date, the time when it was to take effect, which 
may be other than the day of delivery ; or the amount of the 
consideration paid, may be varied by testimony ; but if a note 
given for land is sued, the promisor cannot show in defence that 
the deed described a less quantity of land than had been stipu¬ 
lated. And an instrument may be shown to be void and with> 
out legal existence or efficacy, as for want of consideration, or 
for fraud, or duress, or any incapacity of the parties, or any 
illegality in the agreement. In the same way, extrinsic evi 
dence may show a total discharge of the obligations of the con 


8o8 


INTERPRETATION OF CONTRACTS. 


tract; or a new agreement substituted for the former, which it 
sets aside; or that the time when, or the place where, certain 
things were to be done, had been changed by the parties ; or 
that a new contract, which was additional and supplementary to 
the original contract, had been made, or that damages had been 
waived, or that a new consideration, in addition to the one 
mentioned, has been given, if it be not adverse to that named 
in the deed. And if no consideration be named, one may be 
proved. 

We have already said that a receipt for money is peculiarly 
open to evidence. It is only prima facie evidence either that 
the sum stated has been paid, or that any sum whatever was 
paid. It is in fact not regarded as a contract, and hardly as an 
instrument at all, and has but little more force than the oral 
admission of the party receiving. But this is true only of a sim¬ 
ple receipt. It often happens that a paper which contains a 
receipt, or recites the receiving of money or of goods, contains 
also terms, conditions, and agreements, or assignments. Such 
an instrument, as to everything but the receipt, is no more to be 
affected by extrinsic evidence than if it did not contain the 
receipt; but as to the receipt itself, it may be varied or contra¬ 
dicted by extrinsic testimony, in the same manner as if it con¬ 
tained nothing else. 

Lastly, no contract will be enforced, as a contract, if it have 
no plain and natural or legal meaning, by itself; and if admis¬ 
sible, extrinsic evidence can only show that the intention of the 
parties was one which their words do not express. But the 
supposed contract being set aside for such reasons as these, 
the parties will be remitted to their original rights and obliga¬ 
tions. 


HIS TITLE TO HIS FARM. 


809 


CHAPTER XLII. 

LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 


SECTION I. 

HIS TITLE TO HIS FARM. 

This right may arise from and rest upon possession, inherit¬ 
ance, purchase, or hiring. 

1. Possession. —If the farmer or they from whom he inherits 
have possessed the land without disturbance or adverse claim for 
a sufficient number of years, it is his by what is called prescrip¬ 
tion. The meaning of this is, that the law does not allow any 
adverse claimant to set up an old and stale claim to the farm, and 
on the strength of it deprive a man of property which he has 
held in peace for a long period. This law was founded upon 
the probability that they who have held quiet possession of land 
for a long time must have held it by right; and that no one 
would be likely to lie by and make no claim to the land if he had 
a good title to it. Ages ago, the period required to give title by 
mere lapse of time was a very long one. Gradually it became 
shorter, and is now in this country quite short. Exceptions to 
the rule are always made in favor of those who by reason of 
absence, infancy, or imbecility have been unable to assert their 
claims—the principle being that no one should lose his land 
by suffering another to possess it quietly for a long time but he 
who could have made claim, and was therefore properly pun¬ 
ished for his neglect. 

In Chapter 22, on limitations, and in the abstract of the 
statutes of limitations, beginning on page 284, the reader will 
find stated the periods of time within which, in the several 
States, an action must be brought to recover real estate—that 
is, land. If brought afterwards, the lapse of time is a sufficient 
defense, unless the plaintiff who seeks to recover the land can 
justify his delay in bringing his suit by showing that he or she 
was an infant, or absent from the State, or imbecile, or a married 
woman, or under some other disability; and that he or she 



gio LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 

brought his or her action within the prescribed period, if that 
began after his disability was removed. 

2. Inheritance. —In this country there is not only an entire 
absence of the right of primogeniture, but no other difference 
between the inheritance of real estate or land, and of personal 
property in goods and chattels, than that which arises necessa¬ 
rily from the difference in the nature of these two kinds of 
property. We retain, generally, the phraseology of the English 
law. The word “ inheritance ” applies in law only to real 
property, and the statutes by which it is determined how such 
property passes to the issue or relatives of the deceased, are 
commonly called statutes of inheritance. Whereas those which 
determine how and where the personal property shall go are called 
statutes of distribution. But in all the States these two statutes 
are nearly alike; that is to say, the persons entitled to the real 
estate of a deceased man are almost always those to whom 
the personal property would go as to the next of kin to the 
deceased. 

A person who takes a farm by inheritance (using the word in 
its common meaning), must take it either under the will of the 
deceased, or by force of law as the heir of the deceased. On 
this subject we refer to what we have said in our chapters on wills 
and on executors and administrators. 

3. Purchase. —In this country land can only be transferred 
by Deeds. 

If a man makes a bargain to buy a farm and is so unwise as 
to take possession without having a sufficient deed duly 
executed, his bargain gives him no title to his farm, which still 
remains the property of the man who agreed to sell it. But if 
the bargain be in writing and sufficiently distinct, the law may 
help him and compel the owner to carry his bargain into effect 
by giving a sufficient deed. 

The wiser way, if for any reason the parties are not ready to 
give and receive a deed, is for the intended buyer to take from 
the intended seller a bond for a deed, of which he will find 
several forms. See forms 27, 28, and 29, in this book. 

For offers made on time, see the third section of the sixth 
chapter. 


HIS RIGHT TO HIS FARM. 


811 


For the law of deeds we refer to our chapter on deeds. In 
that chapter will also be found what it is most important to 
Know, remember, and practice—that is the legal requirements 
concerning the signing, sealing, acknowledgment, delivery, and 
recording of deeds. Ignorance or neglect of any of these 
matters may destroy a man’s title to his farm and deprive him 
of it. 

It is now so common to sell a farm at auction that it is well 
to give some of the rules of law about sales at auction. 

4. Sales of Land at Auction. —Every bid by any one 
present is an offer by him. It may be withdrawn before the 
hammer falls ; but if not withdrawn, then the offer is accepted 
and the bargain made. 

If a farm be sold the plan or description offered at the sale 
must give true information, or the purchaser is not bound to 
take the estate. If the descriptions are written or printed and 
circulated among the bidders, they cannot be contradicted by 
verbal declarations made by the auctioneer at the time of the 
sale. 

If land is sold in several lots, and each is bought by itself, there 
is a separate bargain for each lot; and therefore if the seller can 
make good title to only one or more of the lots, the buyer must 
take them though he cannot have the other lots he bought; 
unless he can show that the buying of the whole was a valid 
part of the inducement or motive for buying any, and that the 
part he could have would not answer his purpose unless he could 
have the other lots. 

Whether by-bidders for the seller authorize a purchaser to 
abandon a sale has been much disputed. Of course any fraud¬ 
ulent act of the seller would have that effect; but it seems to 
be law that by-bidding is not necessarily fraudulent, if the seller 
wishes only to avoid sacrifice. But the honest way would be to 
put the land up at a price. And if the seller or auctioneer 
declares at the sale that there is no by-bidding, or makes any 
declaration to that effect, and then employs by-bidding, the 
buyer is not bound to take the land. 

An agreement among many persons that one should bid for 
all is not necessarily illegal. 


Si2 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS 


An auctioneer of real or personal property who does not give 
the name of the owner is himself liable to the buyer for the 
completion of the sale, and for any warranty he makes; and so 
he is if he sold and warranted without authority. But if he 
has authority from the owner and states who the owner is, he 
puts the liability for the sale and the warranty upon the owner. 

SECTION II. 

WHAT ONE TAKES BY THE DEED OF A FARM. 

i. Boundaries and Descriptions. —The first question is 
what land does he take; and this question is answered by the 
boundaries. These cannot be stated too carefully, and cases 
where difficulties and law-suits have arisen from their inaccu 
racy or insufficiency are very frequent. 

One rule to be remembered is, that evidence of what the 
parties meant and intended cannot be used to contradict 
what they have said in writing. See page 74. This rule some¬ 
times works great injustice ; but the reason of it is obvious, for 
if, after parties had agreed upon a matter, and put it in writing in 
the most formal manner, either of them could put the writing 
aside by evidence that he meant something else, nobody would 
be safe in his contracts or secure in his rights. 

But evidence is receivable to show that either of the parties 
used language to defraud the other; for fraud can always be 
exposed, and whenever shown gives the defrauded party the 
right to avoid the contract. Words and conversation about the 
farm amount to nothing in law. 

The intending seller may say how much stock it will feed, or 
what crops it will produce, and if he deceives the buyer this 
man has no remedy, for he must judge of these matters for him¬ 
self, or get disinterested advice. But if he should state falsely 
and fraudulently that the farm had in fact fed so much stock or 
produced such crops, the deceived buyer would have his remedy, 
and could avoid the sale if he thought fit. 

Evidence is always admissible to show what the contract or 
instrument means, as who the parties are, or where the farm or 
land is. The rule is, that evidence cannot contradict but may 
explain a written contract. If a deed says John Smith sells the 


WHAT ONE TAKES BY THE DEED OF A FA KM. 813 

land, evidence cannot show that it was Peter Robinson; but if 
there be John Smith the father and John Smith the son, it can 
show which of them is meant. 

So the boundaries may be obscure or uncertain ; and while 
evidence cannot put new boundaries into a deed, it may make 
those which are there certain. So boundaries may be incon¬ 
sistent. The farm may be said to contain so many acres, and 
to measure five hundred rods from such a boundary to such a 
boundary in a northwest direction. But there may be no bound¬ 
ary in that direction, and the distance from one bound to the 
other may be four hundred and six hundred rods, in a north- 
northwest direction, and the farm may contain more or fewer 
acres than the description. In such a case evidence may show, 
if it can with reasonable certainty, just what the bounds actually 
are, as certain trees, or posts, or rocks. And if the boundaries 
are made certain they will control distances, directions, and con¬ 
tents, unless the discrepancies are so great as to show either 
fraud on one part or the other, or that the parties labored 
under some mistake, and could not have agreed in their minds 
one to sell and the other to buy the same farm ; for this agree¬ 
ment of minds is in law the very essence of a contract. 

If the number of acres enters into the description, it is com¬ 
mon to add, “ be the same more or less.” This guards effect¬ 
ually against any inaccuracy. But without it, the failure in the 
number of acres would not avoid the deed, unless it was so large 
as, with other circumstances, to show fraud. If there be ever 
so much fraud, the fraudulent party cannot take advantage of 
it, and only the defrauded party can. If the seller says the 
farm contains so many acres when he knows it does not, and 
then points out the boundaries accurately and truly, the buyer 
is without redress, because he has the means of correcting the 
misrepresentation. 

2. Contents. —The rule of law is, and for many centuries has 
been, that whosoever owns land owns all there is above it and 
all there is below it; or as the old phrase ran, everything up to 
the sky and everything down to the center. 

Of course all buildings and everything fairly belonging to the 
buildings go with the farm. But then comes the question, what 


8 14 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 


does belong to them ? The answer is given by the rules of law 
as to fixtures. 

3. Fixtures. —They are everything which is fixed or fastened 
to the land. And if anything be fastened to the land, whatever 
is fastened to that thing is fastened to the land. Thus: A 
house rests on a stone foundation sunk into the ground ; but the 
doors and windows of the house are fastened to the house, and 
therefore they are fastened to the land; and the blinds belong¬ 
ing to the windows and the locks and keys to the door, though 
moveabfb and for the time removed from them, and some other 
things of like kind not fastened to the house, are fixtures, and 
go with the house as that goes with the land. The cases are 
almost innumerable which have risen upon the question whether 
this or that thing is a fixture. Before attempting to show how 
this question has been answered, it may be well to state that 
many things are fixtures when a house is sold, so that the seller 
of the house cannot retain them, which would not be fixtures to 
the hirer of the house if he put them in ; and when his lease 
expired he could, therefore, take them away with him. 

In general, whatever the owner of the farm fastens to the 
ground or to a building, or uses constantly with it as an appur¬ 
tenance to it, is a fixture, and he sells it when he sells the farm. 
But whatever a hirer buys or makes to use with the farm, and 
fastens to the ground or building, if he fastens it in such a way 
that he can remove it and leave the land or building in as good 
order and condition as before, he may remove and take away. 

Of course the parties, whether buyer or seller, or hirer or 
lessor, may make what bargains they like about any fixture. 
The law of fixtures comes in only where they make no bargain. 

A. Things held not to be removable by an outgoing tenant .— 
Barns and sheds fixed in the ground, statues erected on a per¬ 
manent foundation as an ornament to the ground, chimney- 
piece not ornamental if it be fastened to the wall, closets affixed 
to the house, conservatory substantially affixed, fuel-house, 
hearths, hedges, pigeon-house, pump-house, wagon-house, box- 
borders not belonging to a gardener by trade, fruit trees not 
belonging to a nurseryman. These last two illustrate a rule of 
much force and frequent application, namely: that a tenant of 


WHAT ONE TAKES BY THE DEED OF A FARM. 815 

land which he hires to carry on a business there may add 
things as a part of his business and take them away, which 
things he would be obliged to leave if they "were not con¬ 
nected with his business. 

B. Things held to be removable by an outgoing tenant .— 
Barns, stables, out-houses and sheds resting on logs or rollers, 
because this showed them to be affixed to the land only tem¬ 
porarily. Ornamental chimney-pieces, fire-frame, furnaces, cook¬ 
ing stove, gates, looking-glasses, trade fixtures generally. 

There are two rules to be remembered, of almost universal 
force. One is that the outgoing tenant who has attached to the 
land or placed upon the premises anything which he cannot 
remove and leave the buildings or the land in as good condition 
as before, must leave that thing behind him. 

The other is that an owner of land who attaches to his land 
or building almost any of the things which a tenant may 
remove, when he sells the land or building sells that thing, 
unless he expressly reserves a right to remove it. 

4. Manure. —If a man sells his farm he sells with the farm 
all the manure upon it, whether it be spread on the fields or is 
heaped up in the barn-yard or cellar. 

If he lets his farm to another, the hirer takes the manure, 
unless the lessor reserves the right to take it away, and when 
the lease expires and the land returns to the owner, the manure 
goes with the land. 

The owner of a farm may undoubtedly, before he sells it, 
remove the manure or sell it separately, if he does this openly 
and not secretly, and not in such a way as to deceive and cheat 
the buyer of the farm. What the right of the outgoing tenant 
is may not be so certain. But it may now be considered as the 
law of this country that a tenant who has occupied a farm on a 
lease, and whose lease is about to expire, cannot sell or remove 
the manure, but it goes with the farm to the owner. 

5. Rocks, Stones, Soil. —These belong wholly to the owner 
of the land, and whoever buys it buys an absolute right to them. 
No man can take away a pebble or a spoonful of earth without a 
breach of the law. This is obvious, for if a man could take one 
spoonful he could take many, and that might be a cartload, 


816 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 

And if he might take a pebble, he might take the rocks. These 
must belong to the owner of the land. 

6. Adjoining Roads. —If one’s farm is bounded by a road, 
and there are no restrictions or reservations in the deeds through 
which he derives title, he owns to the middle of the road, sub¬ 
ject only to the right of the public to use it as a road, or, as it is 
called, their right of way ; subject also to whatever rights the 
law of the State gives to surveyors of roads and highways, or 
other officers. Thus, he owns the grass on the road, and may 
take stone or gravel from the road as freely as from any part of 
the farm, provided he fills the vacant places with equally good 
road material and leaves the road in as good condition as before. 

When the owner of a farm owns to the middle of the adjoin¬ 
ing road he has all the rights to the land consistent with the 
public right of way. He may plant trees on the sidewalk if per¬ 
mitted by proper authority, or unless they obstruct the use 
of the road, and they remain his property. Officers charged 
with the care of roads may remove them, but individuals are 
liable for their wanton destruction. If one fastens his horse to 
the trees, and the horse injures the trees, the man who tied him 
there is liable. 

The owner of a farm cannot put any permanent structure on 
an adjoining road, nor keep his carts and sleds there nor pile 
his wood there, and if he does he is liable to anyone who suf¬ 
fers an injury from running against them while traveling over 
the highway. 

7. Trees. —Of course the owner of a farm buys and owns 
all the trees upon it if at the time of the sale they were 
blown down and lie on the ground, but not if they have been 
cut for sale or fuel. There have been some cases in courts 
turning upon the question what are his rights if his trees hang 
over his neighbor’s fields, and what are his neighbor’s rights. 

In the first place his neighbor owns his land absolutely, and 
all that is above and below it. Therefore he may cut away 
every bough and twig which comes over his land. And he 
may dig down close to the line of his land and cut away every 
root that comes into his land. But how is it as to the fruit 
which grows upon their branches ? This fruit, like the branches 


TRESPASSING ON THE FARM . 


817 

themselves, belongs to the owner of the tree. His neighbor 
may cut the branches away, and they may fall on his ground, 
but he has no right to them. The original owner loses no prop¬ 
erty in them, but has a right to enter peaceably upon the land 
where they lie and take the fallen boughs away. So he retains 
his property in the fruit, and may enter upon the land where it 
lies, and gather it and take it away. Such, we think, are the 
conclusions to be derived from the best adjudication and the 
best reasoning on the subject 

SECTION III. 

TRESPASSING ON THE FARM. 

1. Who is a Trespasser. —The right of an owner of a farm 
to its entire possession is so absolute in law that nobody can 
set foot upon it, by day or night, against the owner’s will, with¬ 
out committing what the law calls a trespass, or a breach of the 
law for which he is answerable. A man’s house, says the old 
maxim, is his castle, as effectually protected by the law as a 
castle by its walls and battlements. If a stranger goes at 
proper hours only upon the roads and paths of the farm, 
although they are not public, they are so far open that one who 
walks on them without evil design and without doing harm, and 
without express prohibition of some kind, would be held to 
have in some sort the owner’s permission. But one who walks 
on the grass, or perhaps anywhere but on the roads or paths, is a 
trespasser, if without express permission. 

2. Of the right of the Farmer to order a Trespasser 
off from his Land. His right to do this is unquestionable. 
But suppose that he gives such an order and the trespasser will 
not go. What can the farmer do ? Then the owner of the 
farm, or of any lot of land, however small, has an equally 
unquestionable right to put him off forcibly if the trespasser 
will not go peaceably. But how much force may the owner 
use ? The answer to this question is distinct and certain 
so far as the law goes, but there may be some difficulty in 
the actual application of the rule. The rule of law is, that the 
owner of the land may, in order to expell the trespasser, “ put 
his hands gently upon him.” But then the question comes 

52 


818 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 


what is “ gently.” This question has been through English 
courts for centuries. They have come to a conclusion which 
the American courts generally adopt. This conclusion is that 
the owner may use whatever force is necessary to expel the 
trespasser, provided on the one hand that he does him no griev¬ 
ous bodily injury, and on the other that he uses no more force 
than the trespasser makes necessary. 

For example: A goes into B’s house, or barn, or on his land, 
and persists in remaining there, although B orders him away. 
B may lay hold of him, may summon help, and with as much 
help as he needs seize him, and if need be bind him hand and 
foot, carry him bodily off his premises, and then unbind him. 
Always on this condition, that he uses no more violence than is 
requisite to remove him, and that he avoids such measures as 
would do serious or permanent harm or endanger life or limb. 
But while B does only what is needed to remove A, and does 
this with sufficient care, if A by some accident is injured, B is 
not responsible, for it is A’s own fault. 

SECTION IV. 

FARM-WAYS. 

Of course an owner of a farm may make or unmake 
his own roads or ways at his pleasure. His neighbor has noth¬ 
ing to do with them, unless the owner give him leave to use 
them, and a right of way must be conveyed by a deed, in like 
manner as the land itself. If, indeed, his neighbor claims a 
right to use one of them, and under that claim uses it as he 
would his own for more than twenty years without the permis¬ 
sion of the owner, such neighbor might acquire a right of way 
by prescription. And if such rights of way become attached 
to a farm by prescription, whoever buys a farm buys with it 
those rights of way. But such a case would not often occur, 

If a farmer sells a lot surrounded by the farm, he sells with 
it a right to pass to and from the lot. But the seller may mark 
out a sufficient passage to and from the land, and over that the 
buyer must go. And when a public highway is laid out which 
gives access to the lot, the buyer of it loses his right of passage 
over the seller’s land, because this right is no longer necessary 
to his use and occupation of the lot. 


WA TER RIGHTS.—FIRE. 


819 


SECTION V. 

WATER RIGHTS. 

The owner of a farm owns the ponds upon his farm and the 
running streams, so far as to make a reasonable use of them 
for his land, stock, or house. He may change the course of a 
stream on his own land, but he must not divert it from his 
neighbor’s land, nor can he lead it into his neighbor’s land else¬ 
where than in its natural channel. He may dam it up so as to 
make ponds on his own land, but cannot overflow his neighbor’s 
land except for mill purposes under the local laws regulating 
such use of the water. If he does, his neighbor may enter his 
farm and remove the dam so far as to relieve his land from the 
overflow ; and if the stream be obstructed by stones or rubbish 
on his neighbor’s farm, he may go on his neighbor’s land to 
remove the obstruction, and may put this on the banks of the 
stream. He may dig anywhere on his own land, even if he cuts 
off the springs which water his neighbor’s land or supply his well 
or pond, for his neighbor has no property or legal interest in the 
waters which flow or stand below the surface of the land. 

As the owner of a farm owns a stream or brook which runs 
through his farm, so if a farm bounds on a running stream 
that is not navigable he owns to what is called the thread of 
the stream, which is the middle of the main current, and may be 
on one side or the other of the middle of the stream. 

SECTION VI. 

FIRE. 

There is a principle of law applicable in a reasonable way to 
everyone, and to the ownership and use of all property. It is 
this: “A man must use what is his own so as not to injure his 
neighbor.” This rule applies distinctly to a man’s right to kindle 
fire on his land. A man who owns any land, much or little, may 
kindle what fire he will upon it and burn what he will in the 
fire. But he is always responsible for the damage his fire does 
if he were negligent in any way about it. It may be that his 
neighbor’s fences or buildings are so near him that he could not 
build a fire upon any part of his land without endangering his 


820 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 


neighbor’s property. Then it might be negligent in him to 
build a fire to burn brush anywhere, or he may build it of par¬ 
ticularly inflammable and therefore dangerous material, or in q 
very dry time, or in a high wind, or too large a fire, or without 
watching it with the care that such a fire required to be reason¬ 
ably safe. If he were sued for the damage it would be for a jury 
to determine, under the direction of the court as to the law, 
whether he was liable, and if so for how much. The court 
would instruct the jury that the builder of the fire was not liable 
if he built it on his own land, unless there were circumstances of 
some kind which satisfied them that he had been in some way 
negligent, and that the damage was directly due to his negli¬ 
gence. Then would come the question, which is often very diffi¬ 
cult because it must be answered by a well established rule, 
applicable not only to fire but in a great variety of cases, but 
which it is often very difficult to apply. This rule is that a wrong 
doer is always answerable for all the immediate or direct effects 
of his wrong-doing, but not further. If we apply this rule to a 
case of fire, the man who built one or tended one negligently 
would be answerable to his neighbor not only for a shed that 
caught, but for his dwelling-house, though that stood at some dis¬ 
tance, if it caught fire from the shed. But he would not be 
answerable to a more distant person whose house caught fire from 
the first house. The reason of the rule is obvious. If the builder 
of' the fire were answerable for the second house, why not for the 
third which caught from the second, and why not for a whole 
city ? It is plain that there must be some limit to a wrong-doer’s 
liability for the consequences of his wrong-doing. It must stop 
somewhere. If the man whose house or store is burned down 
becomes thereby insolvent, no one would say that the man who 
set the fire, however willfully or negligently, should be answer- 
able to this insolvent’s creditors for what they lose by him. As 
this man’s liability must stop somewhere, the law says it stops 
with the direct and immediate consequences of his wrong-doing, 
leaving it to a court and jury to determine what damages were 
direct and immediate, and what were only remote and conse¬ 
quential. 

Farm buildings are sometimes destroyed by fire caught from 


GAME ANIMALS . 


821 


railroad cars. The railroad companies are of course liable for 
all damage caused thereby if the fire arose from any fault of 
theirs or of persons employed by them. It would be the fault 
of the companies if they neglected to use known and entirely 
practicable precautions. Whether they would be answerable if 
wholly free from negligence and default cannot be answered 
from any ascertained and uniform law. Generally we think they 
would be answerable. In some States this is provided by stat¬ 
ute. 

SECTION VII. 

< GAME ANIMALS. 

We have in this country no game laws but such as are 
intended to preserve from wasteful destruction animals valuable 
for food or otherwise useful. It is a pity we have not more laws 
for this purpose, and that they are not better observed. Game 
animals which existed in great abundance almost everywhere in 
this country some years ago are now scarce everywhere, and in 
some regions destroyed, by the indiscriminate slaughter which 
has long prevailed. 

A wild animal, whether beast, bird, or fish, belongs to nobody, 
and everyone may catch or kill it who can. But here again 
comes this question of the right to go upon the land. The 
wild birds on my farm are not mine. I have no better right to 
shoot or snare them than another. But no man has any more 
right to come on my land without my permission, to snare or 
shoot them, than for any other purpose. That is to say, he has 
no right at all. If a man stands in a road adjoining my farm 
and shoots a bird which is coming on my land I cannot say that 
he does me any wrong. But if the bird falls over the line he 
has no right to step a foot on my land to get the bird, and if he 
does so he is a trespasser. 

It is common in some parts of our country to see signboards 
set up on the roadside, giving notice “ no shooting allowed on 
these premises.” The only practical meaning or effect of such 
notices is, that while one who walks peacefully over the land 
will not be prosecuted, one who shoots upon the land will be. 
But he cannot be prosecuted for shooting there or for killing 
wild animals there, but for being there without leave, that 


822 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 

is, for trespassing on the land. So the owner of the farm does 
not own the fish in his ponds or streams until he catches them, 
but no stranger has any right to come over his land to his 
grounds. If such ponds or streams reach a highway any man 
may stand in the highway and fish for them. 

An animal that was originally wild, after it is caught and 
tamed is, with its progeny, as much property as a domestic ani¬ 
mal. 

SECTION VIII. 

DOMESTIC ANIMALS. 

They are as much the property of their owner as anything 
else which he owns. A farmer has certain rights to them and 
certain liabilities for them. 

No one has a right to kill or injure them. If his neighbor’s 
cattle trespass on his land he may impound them , being very 
careful to follow exactly the requirements of the law, for his 
ignorance or carelessness here may get him into trouble. Per¬ 
haps the difficulty or danger of making use of a remedy which 
may so easily be mistaken is one cause why impounding is not 
now so often resorted to as formerly. But the farmer whose land 
cattle trespass on may turn them into the road to go where they 
will. A kind regard for his neighbor would prompt him to give 
his neighbor such information as would enable him to recover his 
cattle, unless, indeed, they were notoriously breachy and their 
owner had been warned often enough. But one who turns 
them from his own land into the road is not bound to give this 
notice. For everyone who owns cattle is bound to keep them 
at home or suffer the consequences. 

So it would be as to sheep, goats, swine, etc. As to hens, 
they cannot be impounded. Of course they can be driven 
away, but they must not be shot, even if their dead bodies were 
returned to their owners. It may be doubted, however, whether 
a jury—who determine all questions of damages in actions of 
trespass—would give much damage if their owner, who was in 
the habit of letting them get their food in his neighbor’s gar¬ 
den, brought an action when their dead bodies were brought to 
him. 

The owner of domestic animals is liable for any dam* 


SALE WITH WARRANTY OF ANIMALS , SEEDS , ETC. 823 

age they cause, and one whose fields they break into may sue 
for the harm they do. 

If he turns his oxen or other animals loose into the public 
highway, and there they injure anyone in person or property, he 
is answerable. Nor is it any defense that he did not know that 
they were particularly dangerous in disposition, nor is it any 
defense that the animals were not so, because he ought to have 
kept them at home. 

Whether this applies to hens the law has not said that we 
know of, but it has said so very decidedly as to all four-footed 
animals, including one of the most troublesome—dogs. As to 
other animals it is a general rule that the owner of an animal 
that is kept at home and there injures a person, is not liable 
unless it can be shown that he had good reason to know that his 
animal was mischievous and should be kept in such a way that 
he would be harmless. But all dogs are mischievous by their 
very nature and their owner is liable for any injury they do and 
its direct consequences. Anyone may kill any dog who runs 
at him in the public highway or on his own land in a threaten¬ 
ing way, or if he is wounding or chasing cattle or sheep in his 
own pastures. In States requiring that dogs should be licensed, 
if they are not licensed they are outlawed, and may be killed 
anywhere by any person who is where he has a right to be. 

SECTION IX. 

SALE WITH WARRANTY OF ANIMALS, OF SEEDS, AND OF FERTILIZERS. 

In our chapter on sales, section 4, we treat of sales with war¬ 
ranty. We would add here some statements of the law which 
have an especial reference to farmers. 

1. Of Animals. —Farmers often buy and often sell animals, 
and it is important to know when the sale is with war¬ 
ranty and when it is not. This is sometimes a difficult 
question. If the word warranty is used there is no question. 
But this word is not essential, and if it is not used there may 
still be a question whether there is a warranty. There is one 
rule stated in our chapter on sales of frequent importance. It 
is that if any thing be bought for a special purpose and this 
purpose is made known to the seller, it is considered in law 


824 legal rights and obligations of farmers. 

that the thing is sold with a warranty that it is fit for that 
purpose. This rule has been applied to the sale of a horse 
without express warranty. 

Mere statements or declarations in circulars or advertise¬ 
ments, or those made in the course of conversation, would not 
amount to a warranty even if the buyer relied upon them 
and was deceived by them. But the law seeks to check the 
fraud which is often perpetrated in this way by the rule that, if 
the representations were made in the negotiation for the sale and 
formed a part of it, if they were intended to cause the sale and 
did help to cause it, then these representations would be a war¬ 
ranty in law with all the effects of a warranty, even if the seller 
made them honestly. 

The warranty may be limited either as to its application or 
as to time. For example, a horse may be sold with warranty 
against lameness or against glanders, and then there would be 
no warranty against anything else. Or he may be sold with 
warranty to last only twenty-four hours, as is frequently said at 
sales of horses by auction. Then the horse must be returned 
for unsoundness or any other defect, or a claim be made for 
a breach of warranty within twenty-four hours after the sale. 

2. Of Seeds. —Not only farmers but everyone who has 
a lot of ground no bigger than a table-cloth, or even a 
dozen flower pots in which he tries to grow flowers or fruit, 
knows what an annoyance it is to find the seeds he bought and 
sowed different from what they were bought for, or lifeless or 
worthless, and that season’s cultivation lost. Only a farmer 
knows the extent of the loss which he may suffer from this 
cause. And here the law comes to his aid, and if farmers gen¬ 
erally knew the remedy in their power and applied it generally, 
it might be hoped that this fraud might be lessened or punished. 
The rule that anything sold for a special purpose is sold with a 
warranty that it is fit for that purpose applies here. And it has 
been decided in some of our States, and we think would now be 
in all of them, that if a buyer asks a seller for seed of a partic¬ 
ular sort or variety and he sells him seed as good seed of that 
particular sort or variety, and it turns out to be not of that sort 
or variety but of some other, or dead and worthless, the seller 


HIRING OF HELP. 


825 

is liable to the buyer not merely to the extent of the price paid 
for the seed, but for all the direct damage which he may have 
suffered therefrom, as the cost of preparing the field for the 
seed or the difference in value between the crop which he raised 
and the crop which would, with reasonable probability, have 
been raised upon the field if the seed sown had been what it 
was sold for. And the seller will be thus liable without any 
express warranty, even if he had been honest and had bought 
the seed as that which he sold it for, and believed it to be 
that, and the fraud or mistake was not his own but the man’s 
from whom he bought it. 

We have no doubt this rule would be applied in the same 
way where one who bought young grafted fruit-trees as of a 
particular variety, and they were sold expressly as such, was 
deceived and injured in a similar way. 

3. Of Fertilizers. —A great deal of fraud has been practiced 
in the sale of fertilizers. This is now much diminished by the 
better knowledge of the subject possessed by farmers and 
gardeners, and also by the laws of some of the States. It 
would always be safer for the buyer to insist on a warranty. 
But this should not be a warranty of the general quality and 
character of the article, for such a warranty would be of little 
practical use except in extreme cases. The warranty should 
be as to the ingredients of which the article consists, and as to 
the percentage quantity of these. If it be a chemical fertilizer 
this is easily ascertained by a chemist. The most essential of 
these ingredients are phosphorus, nitrogen, and potash. These 
elements exist in artificial fertilizers under different forms. 
When the amount of each of them in a hundred weight of the 
article is known to the buyer, it is easy for him to acquire the 
knowledge necessary to judge of the efficacy and value of the 
fertilizer. 

SECTION X. 

HIRING OF HELP. 

i. Rights and Duties of Help. —In England the law of mas¬ 
ter and servant some generations ago was strict, nor has it lost 
all this character yet. Our fathers brought over to this country 
much of this law, but it has entirely lost all its force in all our 


826 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS . 

States. Now the relation of the hirer and the hired is purely 
one of contract. The hired man agrees to sell so much of his 
time, labor, or skill to the hirer, and the hirer agrees to pay so 
much money for what he buys. It is a contract of help and of 
payment for help, and both parties are held to their contract, 
and neither beyond it. 

In the first place, both parties may make just such a bargain 
as they like. They may make a complete bargain concerning 
all items, or a partial one, or none at all. 

In the next place, if a man works for a farmer with a partial 
bargain, or no bargain at all, but at the farmer’s request or 
with his knowledge and acceptance, the law comes in and com¬ 
pletes the bargain, or makes one for the parties. It does this 
on the principle that the working-man undertakes to do his work 
reasonably well, or according to any prevailing and acknowl¬ 
edged custom as to time and manner. And then that the farmer 
is bound to pay him a fair and reasonable price, measured by 
the custom of the time and place, if there is one applicable to 
the case, and by'the judgment of the jury before whom the case 
comes. 

A much more difficult question arises when a man who is 
hired to work on certain terms, for a certain time, works a part 
of the time as he ought to and then leaves his work and his 
employer. Can he recover from his employer payment for the 
work that he has done ? There is some conflict in the law 
about this—that is, in the decisions of the courts on this ques¬ 
tion—and therefore some uncertainty as to the law. This diffi¬ 
culty springs from a rule of law relating to what is called 
“ Entirety of Contract,” which rule is, that if a party to a con¬ 
tract in which he engages to do one whole thing does only a 
part of it, he cannot claim payment for that part. In most 
cases this is perfectly reasonable. If a man agrees to sell a 
farm of a hundred acres for the price of $10,000, he cannot say, 
I have concluded to sell only half my farm, and you must give 
me for that $5,000. But where the whole thing consists of 
divisible parts, and to each part a proportionate part of the 
money can be applied, the rule is of course modified. Thus if 
A agrees to sell to B, and B to buy of A, one thousand bushels of 


HIRING OF HELP. 


827 

potatoes of a certain quality at one dollar a bushel, if A deliv¬ 
ers to B five hundred bushels and refuses to deliver the rest, B 
can say, I want my thousand bushels or none, -and may then 
return to A the five hundred bushels received, and A has no 
claim on him. But he may choose to keep the potatoes 
received, and then he must pay for them the price agreed upon, 
and so he must if he has sold the five hundred bushels and cannot 
deliver them. But, on the other hand, he has a valid claim 
against A for anything he may lose by A’s failure to deliver him 
that other five hundred. If, for instance, potatoes have risen in 
value to one dollar and fifty cents a bushel, B has lost by not 
receiving that five hundred bushels two hundred and fifty dollars, 
and may deduct this from what he has to pay. If the same rule 
were applied to the case of a man who at the beginning of the 
year engaged to work for all that year at fifteen dollars a 
month, and who worked for five months and then left at the be¬ 
ginning of the hay-making season, and then wages were at thirty 
dollars a month, the hirer would pay him fifteen dollars a month 
for the time he worked, deducting therefrom whatever he lost 
by the necessity of paying higher wages, and whatever he lost 
otherwise by the hired man’s failure to perform his contract. 
Such is the view taken of the question by some eminent judges. 
But the greater part of our courts apply the rule strictly. They 
hold that if a hired man engaged for a year, leaves without suffi¬ 
cient cause at the end of the eleventh month, he forfeits all his 
wages and has no claim against the hirer for any part of them. 
All courts agree that if the hired man leaves because of insuffi¬ 
cient food, ill-treatment by the hirer, disabling sickness, or other 
sufficient cause, the hirer is bound to pay him for the time he 
worked. 

It may be added that it is important for the farmer to know - 
and regard the rules pointed out in our chapter XII on the stat¬ 
ute of frauds, especially in section in. 

2. Liability of the Farmer for the Wrong-doing of his 
Help. —This liability rests upon an ancient rule of law, “ What 
a man does by another he does by himself. ,, Thus if a farmer 
ordered his hired man to steal his neighbor’s sheep or wood, the 
hired man would be held as a thief, and the hirer would be 


828 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS\ 

responsible also. But the hirer would not be responsible for 
the thefts of his help without his order or assent. All this is 
plain enough. The difficulty comes afterwards. It comes from 
the extension of the rule which makes an employer responsible 
for the negligence or ill-doing of one employed by him while 
actually engaged in doing what he is lawfully employed to do. 
The cases on this subject are numerous and some of them 
severe. Thus, if a farmer sets his help to cutting his wood 
and tells him distinctly where his line is, and the man forgets 
or mistakes and goes beyond that line and cuts his neighbor’s 
wood, the farmer is responsible. If the hirer directs his help 
to build a fire in a safe place to burn up his rubbish, and 
charges him to take thorough care of it, and the man goes to 
sleep and lets the fire run into his neighbor’s land, the farmer 
is responsible for all that this fire destroys. 

SECTION XI. 

HIRING OF A FARM. 

We have considered the case of purchasing a farm. The 
great majority of farmers own their farms. But there are 
many exceptions. A man may hire a farm for a term of years, 
paying rent, or on shares, or on a tenancy which may be put 
an end to at the will of either party. 

i. Hiring by Lease.— In our chapter on leases, page 610, we 
have given the general rules and principles governing leases, 
together with a variety of forms. We will now give some 
further rules and offer some suggestions upon points which it 
may be useful for a farmer to know and understand. 

Any general description will suffice to put the tenant in pos¬ 
session of the land intended to be hired, if it be capable of dis¬ 
tinct ascertainment and identification. And for this purpose 
certain words in common use, such as farm, land, house, field, 
wood-land, and the like, would be held to have a wide meaning. 
When such general and comprehensive terms are employed, all 
such things as are usually comprehended within their mean¬ 
ing will pass to the hirer by the lease, unless the language of 
the lease or the circumstances of the case show plainly that the 
intention of the parties was different. And inaccuracies as 


HIRING OF A FARM. 


82 9 

tq quantities, names, amounts, etc., will be rejected if there is 
enough left to make the purposes and intentions of the parties 
certain. If the parties have undertaken to make a written bar¬ 
gain and have not made it, the law will not undertake to make 
one for them. But it will do all that can reasonably be done to 
carry into full effect, and exactly as was intended, the written 
bargain they have made. 

Nevertheless there is a rule, not of law, but of common sense 
and prudence, which is applicable to everybody in all matters, 
but to no persons more so than to farmers in relation to their 
farms. This rule is, that it is at once easier and wiser to make 
all bargains and contracts such as will avoid questions and 
doubts than it is to answer these after they arise. 

2. Renewal of Lease. —The lessor is not bound to renew a 
lease without an express covenant to that effect, which may be 
in the lease or in a separate instrument. A mere understand¬ 
ing or verbal promise is not sufficient in law, whatever it may 
be in honor or in morals. 

The law does not favor such covenants, because they 
tend to perpetuity. But if there be such a covenant, and 
it is definite and reasonable, the law will sustain it. A 
covenant to “ renew this lease under or with the same 
covenants ” does not require that the new lease should con¬ 
tain the same covenant of renewal. For this would make 
the lease indefinite and perpetual at the pleasure of the hirer. 
But the covenant to renew covers all the other covenants and 
agreements of the lease. A covenant to “ renew on such terms 
as may be agreed upon ” is void for uncertainty. 

3. Remedy for Non-payment of Rent. —Leases now in use 
almost always contain provisions on this subject, which are, gene¬ 
rally, that the lessor may enter and expel the tenant if the rent be 
not duly paid, or that the tenant forfeits the lease and all rights 
under it by non-payment of rent. Provisions to this effect are 
expressed in various ways, but are substantially the same every¬ 
where, and no particular words are necessary for this purpose. 
But it should be known and remembered that the law is exact 
and even punctilious as to the exercise of this right of re-entry. 
It may be said in general, that to justify re-entry in case of for- 


830 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS. 

feiture a demand must be made for the rent due and for the 
precise sum, and on the very day on which it becomes due and 
payable, and of the tenant himself, or if a place be prescribed 
in the lease where it is payable the demand must be made at 
that place, and if no place be prescribed then of the tenant 
himself, or at a conspicuous or notorious place on the premises 
leased. Of course when the rent is due it becomes a debt, 
for which all the ordinary means of recovering a debt may be 
resorted to. But if there be no clause of forfeiture for non¬ 
payment of rent, the lessor has not, at common law, a right of 
re-entry for this cause. 

4. Tenant’s Right to Vacate the Premises and Give up 
the Farm.— As the owner and lessor may expel the hirer and ter¬ 
minate the lease if he does not pay his rent, so the hirer has cer¬ 
tain rights in this respect as against the owner. In England, from 
whence we derive our law, this law is very severe against the 
tenant. There the landlord is under no obligation to inform an 
intending lessee of defects or objections which he knows and the 
lessee neither knows nor has means of knowing, although the 
defects are entirely incompatible with such use of the premises 
as the lessor knows the lessee intends to put the farm to and 
indeed hires it for. The rule in this country may not be entirely 
settled. But we are decidedly of the opinion that a lessee who is 
so deceived, when he finds that he cannot cultivate the farm or 
make use of it in the manner he intended, may throw it up and 
the lessor has no claim against him. 

Still more certain are we that the lease is cancelled and all 
right to rent is lost by any violent outrage or indecency on the 
part of the lessor, or any intentional and material interference 
by him with the tenant’s proper use and enjoyment of the farm. 

5. Apportionment of Rent.— The owner of a farm which he 
has let to a tenant can sell it as freely as if it were not leased. 
But he sells his farm subject to the lease, for he cannot impair 
the rights which the lessor has under the lease. The buyer 
becomes the lessor and has all the original owner’s rights and 
is subject to all of his obligations which run with the land. So 
the owner may sell a part of the farm, or may sell the whole in 
parts to different purchasers, but this does not extinguish the 
obligations of the hirer or lessee, nor does it transfer them all 


HIRING OF A FARM. 


831 

to any purchaser. So also the owner retaining his ownership may 
assign a portion of the rent—as one-fourth, or one-third, or one- 
half, or any other portion—to an assignee. Whether the owner 
sells a part of the farm, or the whole in parts to different pur¬ 
chasers, or assigns a part of the rent or the whole in parts, 
there must be an apportionment of rent . The tenant must pay 
the same rent as before, but now he pays it to the persons en¬ 
titled to it, in the proportion in which they are entitled to it. 

If the owner sells his farm in undivided parts, as one- 
half or one-third to one buyer and the residue to another, but with¬ 
out boundaries, there is no difficulty in apportioning the rent in 
the same way. But suppose the owner sells a part of the farm 
by boundaries, as if he sells certain fields or lots, the rent must 
now be apportioned according to value and not according to 
qtiantity. Here again the tenant has no other interest than to 
ascertain to whom he must pay his rent. If the owners and 
the buyers of the fields or lots agree together as to the appor¬ 
tionment of the rent, the lessee is bound by their agreement, 
because it is of no importance to him to whom he pays his rent. 
If they do not agree, it is a question of fact which a jury must 
settle for them. 

So there may also be an apportionment by time, as when the 
lessor dies in the middle of the term for which the farm is 
leased. The lessee is now liable to the executors or adminis¬ 
trators of the deceased for so much of the rent as accrued 
before he died, and to the heir afterwards, or to the heirs in 
the proportions in which they inherit the farm. 

6. Cultivation of the Farm. —In our chapter on leases it is 
said that the tenant of a farm is bound, without express cov¬ 
enant, to manage and cultivate the same in such a manner as 
good husbandry and the usual course of management of such 
farms in his vicinity require. But it is seldom wise to leave 
this matter wholly unprovided for by express agreement. The 
owner and the hirer of a farm generally have an understanding 
on this subject, and this should be reduced to writing in the 
lease. Perhaps if nothing else be understood between them 
but customary and reasonably good cultivation, it is safe enough 
to leave this to the law. But more may be agreed upon, and espe- 


832 LEGAL RIGHTS AND OBLIGATIONS OF FARMERS . 

daily there may be a distinct bargain as to certain crops, or 
a certain rotation of crops, or the cutting of wood, or what 
fields should be broken up or sown, and what, when, and 
where manure shall be placed, or what land sown to grass, etc. 
All these things should be most distinctly and carefully set 
forth in the lease as agreed upon. For no merely verbal 
agreements would have any effect. For here, as elsewhere, 
in accordance with the important rule laid down on page 74 
of this volume, no evidence would be received to vary the lease 
or add to or diminish its obligations. 

For the purpose of showing how and where special stipula¬ 
tions may be inserted we give the following form. The clause 
concerning renewal may be omitted if there is no agreement. 

( 243 .*) 

A Form of a Lease of a Farm. 

This Indenture, Made the day of in the 

year of our Lord one thousand eight hundred and 
Witnesseth, That I, {name and residence of the lessor) do hereby 

lease, demise, and let unto (name and residence of lessee) a certain farm or 
parcel of land, in the city (or town) of county of and 

State of with all the buildings thereon standing, and the appur¬ 

tenances to the same belonging, bounded and described as follows : 

(The premises need not be described quite so minutely or fully as is proper 
in a deed or mortgage of land, but must be so described as to identify them 
perfectly , and make it certaifi just what premises are leased.) 

To Hold for the term of from the day of 

yielding and paying therefor the rent of 
And said lessee does promise to pay the said rent in four quarterly pay¬ 
ments on the day of , (or state otherwise just when 

the payments a^e to be made) and to quit and deliver up the premises to the 
lessor or his attorney, peaceably and quietly, at the end of the term, in as 
good order and condition, reasonable and proper use thereof, fire and other 
unavoidable casualties excepted, as the same now are or may be put into by 
the said lessor, and to pay the rent as above stated, and all taxes and duties 
levied or to be levied thereon, during the term, and also the rent and taxes, 
as above stated, for such further time as the lessee may hold the same, and 
not make or suffer any waste thereof; nor lease nor underlet, nor permit any 
other person or persons to occupy or improve the same, or any part thereof, 
or make or suffer to be made any alteration therein but with the approba¬ 
tion of the lessor thereto, in writing, having been first obtained; and that 
the lessor may enter to view and make improvements, and to expell the les¬ 
see, if he shall fail to pay the rent and taxes as aforesaid, or make or suffer 


HIRING OF A FARM. 


833 

any strip or waste thereof, or fail to fulfill any of the obligations hereinafter 
recited. That is to say, the said lessee hereby covenants and agrees that he 
will cultivate the said farm during all his possession of the same, in such 
manner as good husbandry requires, and in especial, that he will {here insert 
carefully and fully all the agreements which the parties have made respecting 
the cultivation of the farm or to which the lessor intends to bind the lessee , and 
to which the lessee is willmg to be bound). And the said lessor on his part 
covenants that he will, at the request of the said lessee, renew the lease for 
the period of years, to begin at the expiration of his lease. 

In Witness Whereof, The said parties have hereunto interchangeably set 
their hands and seals the day and year first above written. 

( Signature .) {Seal.) 

{Signature?) {Seal. 

Signed\ Sealed\ and Delivered in Presence of 

7. Hiring on Shares. —It is a common practice in many 
parts of this country, for the owner of a farm to let it “ on 
shares.” In some countries the great body of the land is let in 
this way; the proprietor finding for the use of the occupier, 
such cattle, seeds, implements or tools as may be agreed upon, 
and the tenant or occupier of the land paying to the proprietor 
the agreed proportion of the produce. This proportion varies 
in those countries with varying circumstances, from one-tenth 
to one-half ; being generally from one-third to one-half. If par¬ 
ties in this country make a bargain of this sort, and wish to 
reduce it to writing, the foregoing form of a lease will answer 
their purpose, provided they write, in the place of the agreement 
about rent in that form, what each of the parties agrees to do 
by their bargain ; the one as to what the lessor shall provide for 
the use of the hirer, and the other as to what share or propor¬ 
tion of the produce the lessee shall pay or deliver to the lessor 
or owner, and how it shall be delivered. 

Other rules as to the rights and obligations of farmers as 
owners or hirers of a farm, or lessors and lessees, or landlord or 
tenants, will be found in our chapter XXXI on leases. Among 
them are the rules relating to repairs, and the obligation of 
either party to make them. Rebuilding in case of fires. 
Assignment of lease, or underletting of the whole or a part of 
the farm. The rights of out-going tenants to crops which he 
sowed and which mature after he leaves the farm. Tenancy at 
will, and notice to quit; and other like points. For the law on 
these subjects we refer to that chapter. 

53 


INDEX. 

For Index of Forms, See page 859. 


A. 

Abandonment, in the law of marine insur¬ 
ance, meaning of, 396. 
not obligatory on insured, 397. 
necessity of, 397. 
of the right of, 397. 
of the exercise of the right of, 399. 
how made, and by whom, 399. 
irnst be distinct, 399. 
i. .deficient in form, objections, how waived, 
400. 

when insured must elect whether or not to 
abandon, 400. 

acceptance of by insurer, 400. 
of the effect of, 401. 

masters and owners become trustees for 
the insurers in respect to the property 
abandoned, 401. 

loss after must be made up by owner, 402. 

Acceptance of offer, when necessary to make 
a contract, 67. 
of bills of exchange, 195. 
how may be made, canceled, etc., 195. 
can be done only by the drawee, his agent, 
or some one who accepts for his honor, 
196. 

no holder is obliged to receive an accept¬ 
ance for honor, 197. 

holder may accept or refuse a qualified, 
196. 

presentment for, 180. 
or payment, for honor, 196, 197. 
of abandonment in insurance, 400. 
of insurer, not necessary to give full effect 
to an abandonment, 400. 

Acceptor, of bill of exchange, 163. 

of bill, bound to pay the same at maturity, 
179 - 

rights and duties of, 195. 

Accommodation Paper, incidents of, 174. 

(834) 


Acknowledgment, necessary before record¬ 
ing deeds, 443. 

Actions, abstract of the laws of all the States 
respecting the commencement of, 705. 

Adjustment, of average, 341. 
by whom made, 342. 
when binding, 341. 

difference between marine and fire policy 
in, 425. 

Administrators, and executors, law of, pow¬ 
ers and duties of, 790. 

Affirmation, of consignee or agent, 364. 

Agency, in general, 207, 208. 

may be established by subsequent ratifi¬ 
cation, 210. 

general rules of, 210-214. 

rights of action growing out of, 215, 216. 

Agent, acting under del credere commission , 
220. 

must obey all instructions, 221. 
commercial jurisdiction over seamen, 352. 
extent and duration of authority of, 212- 
214. 

general and particular, 208. 
binds the principal by his acts, 207. 
liability of, 212. 

may receive his authority, how, 209-212. 
acts of, may be ratified by principal after¬ 
wards, 210. 

may insure against fire, 415. 
w r hen master of ship is, 346. 
in general, is entitled to indemnity from 
principal, 218. 

cannot appoint a sub-agent unless author- 
ized, 218. 

is bound to use all reasonable care and 
skill, 218. 

is responsible for any breach of duty, 218. 
employed to sell property, cannot buy it 
himself, 219. 





INDEX. 


835 


Agents must keep exact account of all do¬ 
ings, 219. 

when he may throw up the agency at 
pleasure, 220. 

authority of, is revoked by insanity, 220. 

Agreement and Assent (chap, vi), 67. 
the legal meaning of, and requirement of, 

67. 

when parties understand each other dif¬ 
ferently, what their rights, 68. 
in construing, the intention of the parties 
always a guide, 68. 

mistakes of fact in, may be corrected by 
the courts; mistakes of law cannot be, 

68 . 

what a legal assent is, 69. 
offers made on time, 70. 
a bargain made by correspondence, 71. 
what evidence may be received in refer¬ 
ence to a written contract, 72. 
of custom, or usage, 74. 
to do work, when broken by promisor, 
without good cause, he cannot recover, 

102. 

rules for determining, when original agree¬ 
ment has been somewhat departed from, 

103. 

when may be and when it should be made 
without seal, 104. 

when under seal, and so formed that it 
becomes an indenture, 104. 
when by one only, without seal, it is a 
simple promise, 104. 

when by one only, under seal, it becomes 
a bond, 104. 

to be performed within a year, when not 
affected by the statute of frauds, 145. 
form, and subject-matter of, 146. 
if name be printed to, may be sufficient 
signature, 146. 

when it should be written and signed by 
both parties, 77. 

not controlled by oral testimony, except in 
case of fraud, 77. 

for sale of lands, should always state cov¬ 
enants contemplated, 85. 
for arbitration, not binding on any, unless 
all have entered into it, 100. 

Alabama, law as to rights of married women 
in, 40. 

days of grace allowed, and legal holidays 
in, 201. 

statute of limitations in, 284. 
usury laws of, 308. 


Alabama, number of witnesses and acknowl¬ 
edgment required to deeds of land ex¬ 
ecuted in, 538. 

abstract of laws relating to collection and 
recovery of debts in, 705. 
chattel mortgages regulated by statute in, 

653 - 

number of witnesses to wills necessary 
in, 784. 

mechanics’ liens, abstract of law of, 765. 

Alienation, in the law of insurance, what is 
considered such as to terminate the in¬ 
sured’s interest, 423. 

consent of insurer should be obtained to, 

4 2 3 - 

of policy, 424. 

Allowance, in the law of insurance, of new 
for old, 403. 

Alterations, of policy of insurance, 371. 
effect of, on insured property, 412. 
prudent to obtain insurer’s assent to, 413. 

Apprentices (chap, iv), 34. 
obligations of the master, 35. 
obligations of the apprentice, 35. 
what misconduct of, authorizes a dis¬ 
charge of him by his master, 35. 
seducing an apprentice away from his 
master, liability for, 35. 

Application, for insurance, how made, 409. 

Arizona, law as to rights of married women 
in, 40. 

days of grace allowed and legal holidays 
in, 201. 

statute of limitations in, 285. 
usury laws of, 308. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
538 . 

abstract of laws relating to collection and 
recovery of debts in, 705. 
chattel mortgages regulated by statute in 

653 - 

number of witnesses to wills necessary in, 

784 - 

mechanics’ liens, abstract of law of, 765. 

Arkansas, law as to rights of married women 
in, 40. 

days of grace allowed and legal holidays 
in, 201. 

statute of limitations in, 285. 
usury laws of, 308. 

number of witnesses and acknowledgment, 
required to deeds of land executed in, 
538 . 





INDEX. 


836 

Arkansas, abstract of laws relating to col¬ 
lection and recovery of debts in, 706. 
chattel mortgages regulated by statute in, 
654 - 

number of witnesses to wills necessary in, 
785 - 

mechanics’ liens, abstract of law of, 765. 

Arbitrators, submission to,when it maybe 
set aside by either party, before award 
made, 254. 

Arbitration, is favored by law, 250. 

Articles of shipping, 350. 

Arrest, of vessel, how affecting insurers, 390. 
abstract of the laws of all the States re¬ 
specting, 705. 

Assignment, definition of, 113. 
of policy of insurance, 372. 
of policy, avoids it, when, 424. 
of policy, should be made on it, 429. 
always best to secure the insurance com¬ 
pany’s assent to, 429. 
of policy, what constitutes, in life insur¬ 
ance, 435. 

Attachment.— See Recovery of Debts, 
703 - 

abstract of the laws of all the States re¬ 
specting, 705. 

Authority, extent and duration of agent’s, 
212. 

execution of, must be conformed to with 
strictness, 214. 
of ship-master, 346. 

Average, general, 338. 

when within the scope of insurance, 402. 
what is not included in, 339. 
adjustment of, 341. 

adjustment of, by whom made, when, 343. 

Award, essentials of, 250. 
must be certain, 251. 
must be possible, 251. 
when fully made, none of the parties have 
further control, 255. 

should be sealed up and delivered to all 
the parties, 255. 
must be reasonable, 251. 
must be final and conclusive, 251. 
no especial form of, necessary, 253. 
the directions in submission of, must be 
strictly followed, 253. 
set aside, if “ procured by corruption or 
undue means,” 253. 

set aside, if the arbitrator has made a ma¬ 
terial mistake of law or fact, 253. 


B. 

Bailee, may insure against fire, 416. 

Banks, receive more than legal interest, 305. 

Bank Bills, are promissory notes of a bank, 
payable to bearer, 172. 
a good tender, unless objected to at the 
time, 172. 

Bank Check, is a bill of exchange, 172. 
requires no acceptance, 173. 
if drawn when drawer has no funds in the 
bank, it is a fraud, 173. 
usually payable to bearer, 173. 
is not payment till cashed, 173. 
countermanded by death of drawer, 174. 
if a bank pay a forged, it is its own loss, 
174 - 

Baggage, carrier liable for reasonable amount 
of, 271, 272. 

what has been held as, 271, 272. 

Bargain, naked, is when no consideration is 
given, 97. 

for real property, void when oral, 450. 

Barratry, how defined, 390. 

how provided against in the policy, 390. 

Bill of Lading, essentials of, 328-330. 
signed by master of ship, 329. 
evidence against shipowners, 329. 

how given in case of charter parties, 
335 - 

Bill, legal meaning of, 149. 

of exchange, foreign and inland, 175. 
maker or acceptor of, how bound to pay 
the same, 179. 

what is meant by foreign, 186. 
loss of, no excuse for not protesting it, 
186. 

notarial seal, evidence of dishonor of for¬ 
eign, 186. 

paid at maturity ceases to be negotiable, 
195 - 

portion of, cannot be transferred, 195. 
may be transferred by endorsement of 
executor, after death of the holder, 195. 
of sale of vessel, 355. 
of exchange, is what, 162. 
difference between parties to promissory 
note and parties to, 166. 

Blockade, what it is, and law of, 391. 
when it may be run, 391. 

Boarders and guests at hotels, distinction 
between, 277. 

Bond, essentials of, 104. 
condition of, 105. 



INDEX. 


837 


Bond of bottomry, 325-327. 

of respondentia, by whom given, 348. 

“ applies to what, 348. 

Bottomry, contract of, 325-327. 
bond of, 325-327. 
pledge, when justified, 347. 

Brokers, have generally no authority to re¬ 
ceive payment, 222. 

Business Law, in general, in chap, ii, 27. 

Buyer, acquires the right to consider no sale 
as made, if the seller neglects or refuses 
to deliver the goods in reasonable time, 
119. 

when imposed upon by fraudulent sale 
must at once exercise right of annul¬ 
ling it, as soon as he knows the fraud, 
128. 

c. 

California, law as to rights of married 
women in, 40. 

days of grace allowed, and legal holidays 
in, 201. 

statute of limitations in, 285. 
usury laws of, 308. 

number of witnesses and acknowledg- 
'ment required to deeds of land executed 
in, 538. 

abstract of laws relating to collection and 
recovery of debts in, 707. 
chattel mortgages regulated by statute in, 
654 - 

number of witnesses to wills necessary 
in, 785. 

mechanics’ liens, abstract of law of, 765. 

Canada, laws of, 58, 692, 700. 
usury laws of, 308. 

Capture, how affecting insurers, 391. 

Cargo, a part of the, when legal, may be 
insured, 376. 

when sold, or pledged by master, 347. 

Carrier, is liable only for goods delivered to 
him, 272. 

is liable only for injuries done by himself 
or servants to third persons, 273. 
private, liability of, 257, 258. 
when gratuitous bailee, 258. 
private, liable for gross negligence, 258. 
common, who is a, 259. 
common, rights and responsibilities of, 

259 - 

common, distinction between private and, 
259 - 

common, who are chargeable as, 259, 260, 


Carrier, common, obligation of, 261-266. 
common, cannot refuse goods without 
good cause, 261. <*- 

common, is bound to receive goods in a 
suitable way, and at suitable times and 
places, 262. 

common, is bound to comply with direc¬ 
tions, 262. 

common, obligation as to passengers, 262, 

263. 

common, obligation as to delivery of 
goods, 264, 265. 

common, immediate notice must be given 
when not delivered to owner or agent, 

264. 

common, lien of, on goods, 266. 
common, liability of, 266-268. 
common, liable for loss happening under 
his charge, except for act of God or 
public enemy, 267. 
common, liable for loss by fire, 267. 
common, general principles of agency 
apply to, 268. 

common, may be liable beyond his own 
route, 268. 

of passengers, is under more limited lia¬ 
bility, than carrier of goods, 268. 
common, has a right to modify his liabil¬ 
ity by bargain, 269. 

common, notice by, if reasonable and just, 
is binding, 269. 

liability of, for goods carried by passen¬ 
gers, 271-273. 

liable for necessary amount of baggage, 
271, 272. 

may insure against fire, 416. 

Charter, power of master to, 346. 

Charterer, of ship, rights of, 334, 335. 

Charter Party, 359. 
defined, 334. 

no particular form for, 335. 
how suspended or annulled, 338. 
contract of, may be dissolved, how, 338. 

Chattel Mortgages, abstract of the laws 
of all the States respecting, 653. 

Choses in Possession, a law term, explained, 
3 8 - 

Choses in Action, a law term, explained, 38. 

Claim, for contribution, 338. 

of insured, founded on interest, 374. 

Codicils, meaning of, law of, and rules con¬ 
cerning, 779. 

Collision, who liable for, 348. 




838 


INDEX. 


Collision, rules in regard to, 349. 
a peril of the sea, 389. 

Colorado, law of as to rights of married 
women, 41. 

days of grace allowed, and legal holidays 
in, 201. 

statute of limitations in, 286. 
usury laws of, 309. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
539 - 

abstract of laws relating to collection and 
recovery of debts in, 709. 
chattel mortgages, regulated by statute in, 

655 - 

number of witnesses to wills necessary in, 
785. . 

mechanics’ liens, abstract of law of, 765. 

Common Carrier. See Carrier. 

Common Law, as distinguished from stat¬ 
utes, 27. 

Commerce, power to regulate, in Congress, 

3 j 8 - 

Commercial Agents, jurisdiction of, over 
seamen, 352. 

Compound Interest. See Interest. 

Companies, for effecting fire insurance, 405. 
mutual, compared with joint stock, 405. 
usage of each other, may be appealed to 
in what cases, 407. 

all insured, become members in mutual 
fire insurance, 405. 

Compliance, with terms offered, when it 
makes a contract, 69. 

Concealment and misrepresentation, 383. 
converse of representation, 419. 
effect of, 419. 

when would operate as fraud, and avoid 
the policy, 420. 

in case of life insurance, 435-439. 

Condition, of a bond, 105. 

on which application for insurance is 
based, 409. 

effect of, in deed, 449. 

Confession, of judgment, 197. 

Connecticut, law as to rights of married 
women in, 42. 

days of grace allowed, and legal holidays 
in, 201. 

statute of limitations in, 286. 
usury laws of, 309. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
539 - 


Connecticut, abstract of laws relating to 
collection and recovery of debts in, 710. 
chattel mortgages regulated by statute, 
in, 655. 

number of witnesses to wills necessary in, 
785. 

mechanics’ liens, abstract of law of, 765. 

Consideration, required to support a prom¬ 
ise, 97. 

exceptions to the rule requiring considera¬ 
tion for a promise, 97? 
sufficiency of, 98. 
what is a sufficient, 98-100. 
cannot be anything by which the public 
interests are harmed, 99. 
one promise is sufficient, for another, 99. 
failure of, 102. 

when failure is partial only, may be 
foundation for promise, 102. 
merely moral, is not in law a sufficiently 
legal, 100. 
illegal, 101. 
impossible, 101. 
implied by seal, 106. 
need not be alleged in a bond, 106. 
need not be expressed in agreement, 146. 
what it may be, valuable, legal, or moral, 
178. 

none sufficient when illegal, 178. 
may be illegal, in how many ways, 178. 
for the insurance, 370. 

Consignee, may assign bill of lading, 329. 
cannot abandon goods for freight so long 
as they remain “ in specie,” 333. 
oath or affirmation, 365. 
may insure against fire, 415. 
may cover in one policy, in his own name, 
goods of various consignors, 415. 
not bound to insure, but may in his dis¬ 
cretion, 415. 

Construction, of statute of limitations, 279. 

Consuls, jurisdiction of, over seamen, 352. 

Contract, for building, should always be 
accompanied by specifications, 92. 
void for illegality or fraud, 126. 
when “wager,” 127. 
is vitiated and avoided by fraud, 127. 
in general, the law of place governs every, 
^ 75 - 

law of the court determines all questions 
as to remedy on a, 176. 
for usury, wholly void, 302. 
foreign, for usury, valid everywhere but in 
the States where suit is brought, may 
be enforced there, 304. 




INDEX. 


839 


Contract, law of place of, governs construc¬ 
tion of, 3x4. 

valid where made, valid elsewhere, 313. 
is made when, 314. 
is made where, 314. 
as influenced by law of place, 314, 315. 
of bottomry, 325-327. 
of affreightment, is entire, 330. 
of charter party, how dissolved, 338. 
of insurance, 370. 
of insurance, when complete, 407. 
of insurance must be strictly regarded, 
407 - 

general principles of construction of, 796. 
some general rules of construction of, 797. 

Contribution, claim for, during embargo or 
capture, 338. 
how made, 338. 
for ship’s repairs, 339. 

Conveyances, of ships, recorded, 318. 

by one insured, when treated as a mort¬ 
gage, 424. 

Covenants, of special or general warranty, 
should be stated in agreement for sale 
of lands, 85. 

of warranty, in deed, 447, 448. 

Copyrights, law of, 696. 

what may be the subject of, 696. 
how copyrights may be obtained, 697. 
period of time for which they secure the 
right, 696. 

punishment for infringement of copyright, 
698. 

agreement respecting copyrights and pub¬ 
lishing, 700. 

Coverture, a law-term, means marriage. 

Creditors, partnership, cannot attach pri¬ 
vate property till private creditors are 
satisfied, 241. 

levy of private, on partnership property, 
confers only what the partner has, 241. 
have an insurable interest in the life of 
their debtor, 434. 

Custom, of merchants, its force and effect, 28. 
not valid if illegal, 29. 
has no force when contract made express¬ 
ly to the contrary, 76. 
or usage, made use of in construing the 
meaning and effect of a contract, and 
of the words used, 74, 75. 
never considered, if parties expressly 
agree to disregard it, 76. 
effects of, on contracts, 802. 


D. 

Dakota, law as to rights of married women 

in , 43 - 

days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 286. 
usury laws of, 309. 

number of witnesses and acknowledgment, 
required to deeds of land executed in, 
539 - 

abstract of laws relating to collection and 
recovery of debts in, 711. 
chattel mortgages regulated by statute in, 

655 - 

number of witnesses to wills necessary in, 

785 - 

mechanics’ liens, abstract of law of, 766. 

Damages, when liquidated,when unliquidated, 
i34, 301- 

Days of Grace and holidays in all the 
States, abstract of, 201. 

Debt, barred under statute of limitations, 279. 

Debtor may insure his life in favor of 
creditor, 434. 

Debts, recovery and collection of, 703. 

Deed, meaning of legal and common, 440. 
should be signed, and in what manner, 
440. 

seal of, is what, 441. 
should be delivered, 441. 
may be delivered by what persons, 442. 
execution of, should be attested by wit¬ 
nesses, 442. 

acknowledgment of, incidents of, 443. 
must be registered in the proper record¬ 
ing office, 444. 
effect of non-recording, 445. 
should be dated, 445. 
customary to name consideration in, 445. 
receipt of consideration in does not bind 
seller, 446. 

description of land in, should be minute 
and accurate, 446. 

when conferring life-interest, merely, 446. 
when conferring fee-simple, 447. 
terminated by clause of execution, 447. 
of warranty, or of quitclaim, 447. 
of quitclaim, with warranty, 448. 
hardly safe to have condition in, 449. 
as to husband and wife joining in, 449. 
variety of, 450. 
deed-poll explained, 451. 
of indenture, 451. 



840 


INDEX. 


Deed of mortgage, 542. 

abstract of the laws of all the States relat¬ 
ing to, 538. 

Delaware, law as to rights of married 
women in, 43. 

days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 287. 
usury laws of, 309. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
539 - 

abstract of laws relating to collection and 
recovery of debts in, 713. 
chattel mortgages regulated by statute in, 

655 - 

number of witnesses to wills necessary in, 
785. . 

mechanics’ liens, abstract of law of, 766. 

Delivery, what is sufficient to constitute, 
121, 122, 124. 

as bearing on the validity of the trans¬ 
action, 123. 

of policy, not essential, 407. 
necessary to assignment of life-policy, 435. 
essential to validity of deed, 441. 
of deed, may be made by whom, 442. 

Demand of Payment, is sufficient, if made 
at residence or place of business of 
payee, 183. 

and refusal, what constitutes, 183. 
bankruptcy or insolvency no excuse for 
non demand, 183. 

should be made at the proper place, 185. 
for payments should be made at the place 
designated in the instrument, 185. 

Demurrage, law respecting, 338. 

Description, of property insured, 386. 
in the policy of insurance, 407. 
of insured property, held to amount to 
what, 410. 

Desertion, of seamen, how punished, 353. 

Deviation, how defined, 392. 
how affects insurers, 392. 

District of Columbia, law of as to rights 
of married women, 43. 
days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 287. 
usury laws of, 309. 

number of witnesses and acknowledg¬ 
ment required to deeds of land exe¬ 
cuted in, 539. 


District of Columbia, abstract of laws 
relating to collection and recovery of 
debts in, 714. 

chattel mortgages, regulated by statute in, 

655 - 

number of witnesses to wills necessary in 
785. 

mechanics’ liens, abstract of law of, 766. 

Domicil, of person how determined, 315, 318. 
a person can have but one, 316. 
first is retained till second is acquired, 317. 
may be changed, how, 316. 
woman marrying acquires her husband’s, 
318. 

of the father determines that of child, 
318. 

Drawer, to bill of exchange, 163. 

E. 

Equity of Redemption, of mortgagor, 

543 - 

Evidence, of death, what must be, 433. 
may disprove receipt in deed, 446. 
cannot be received to contradict or change 
the effect of a written contract, but may 
be received to explain it, 72. 
admissibility of extrinsic, to affect con¬ 
tracts, 805. 

Exception, to common law rule, in case of 
negotiable paper, 176. 
statutory, under statute of limitations, 282. 

Executor, may indorse bill or note after 
death of holder, 195. 

Executors, law of, powers and duties of, 790. 

Execution, of authority, 214. 
of fire policy, 407. 

Exemption, of property, from attachment or 
execution, 704. 

Exemptions, abstract of statutory provisions 
respecting in all the States, 705. 

Explanation, of a written contract, by evi¬ 
dence, law as to, 72, 73. 

F. 

Factor, may pledge goods for advances to 
principal, 221. 

must obey all instructions, 221. 
liable to principal for default, 221. 
may insure goods in possession, 221. 
may use his own name in all transactions, 
222. 




INDEX. 


841 


Factor, distinction between foreign and do¬ 
mestic, 222, 223. 

cannot claim his commissions till his 
whole duty be performed, 222. 
Farmer, legal rights and obligations of, 809. 
title by possession, 809. 
title by inheritance, 810. 
title by purchase, 810. 
sale of land at auction, 81 x. 
when land is sold at auction in several lots, 
811. 

auctioneers’ liabilities for sale of, 812. 
what one takes by the deed of a farm, 812. 
boundaries and descriptions, 812. 
contents of the farm, 813. 
fixtures, 814. 

things unremovable by outgoing tenant, 
814. 

things removable by outgoing tenant, 815. 
rocks, stones, and soil, rights as to, 815. 
adjoining roads, rights as to, 816. 
trees, and neighbors’ trees, rights as to, 

816. 

trespassing on the farm, what is, 817. 
rights of the farmer as to the trespasser, 

817. 

farm-ways, 818. 
water, rights to, 819. 
fire, right to make and liability for, 819. 
game animals, rights to, 821. 
domestic animals, rights and liabilities as 
to, 822. 

animals, sale of with warranty, 823. 
seeds, sale of with warranty, 824. 
fertilizers, sale of with warranty, 825. 
fruit trees, sale of with warranty, 825. 
help, hiring of, 825. 
help, rights and duties of, 826. 
help, liability of farmer for wrong-doing, 
827. 

hiring of a farm, renewal of lease, 828. 
hiring of a farm, remedy for non-payment 
of rent, 829. 

hiring of a farm, tenant’s right to give up 
the lease, 830. 

hiring of a farm, apportionment of rent, 

831- 

hiring of a farm, cultivation of the farm, 

831- 

hiring of a farm, on shares, 833. 

Feme Covert, means a married woman. 
Feme Sole, means a single woman. 


Fire Insurance, to what applied, 405. 
by whom effected, 405. 
different kinds of companies for, 405. 
method of, 409. 

Foreclosure of Mortgage, explained, 
544- 

Foreign and Inland Bills, 175. 
Florida, law as to rights of married women 
in, 43- 

days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 287. 
usury laws of, 309. 

number of witnesses and acknowledg¬ 
ment required to deeds of land executed 
in, 539- 

abstract of laws relating to collection and 
recovery of debts in, 715. 
chattel mortgages, regulated by statute 
in, 655. 

number of witnesses to wills necessary in, 
785. . 

mechanics’ liens, abstract of law of, 766. 
F raud, annuls all obligations and all contracts 
tainted by it, 69. 

mere silence is seller, in general, is not, 
128. 

vitiates and avoids all sales, 128. 
may be waived, when, 128. 
is waived, when action is brought to 
enforce the contract, 128. 
statute of, purposes and provisions, 142- 
147. 

Freight, is not earned unless the goods are 
carried to place of destination, 330. 
rule for, “pro rata itineris,” 331. 
cannot be earned by illegal voyage, 333. 
paid in advance, not afterwards earned, 
must be repaid, 333. 

party receiving goods becomes liable for, 

332- 

lender on bottomry bond has no right to, 

333- 

mortgagee not in possession has no right 

to, 333- 

is payable when goods are delivered, in 
specie, though damaged, 333. 
word used how, 327. 
law of, 328. 
meaning of, 377. 
interest in, 377. 
subject of insurance, 377. 



842 


INDEX. 


G. 

Garnishee Process. See Recovery of 
Debts, 703. 

Garnishment, abstract of the laws of all the 
States respecting, 705. 

General Average, 338. 

sacrifice must be voluntary, necessary, and 
effectual, 339. 
law of, rests on, 339. 
goods not contributed for, when, 340. 
held for contribution, 341. 
when jettisoned, owner entitled to contri¬ 
bution, 340. 
value of insured, 374. 
rules relative to total loss of, etc., 402. 

General Agency. See Agency, 207. 

General Agent, master of ship is, 346. 

Georgia, law as to rights of married women 
in, 44. 

days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 287. 
usury laws of, 309. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
539 - 

abstract of laws relating to collection and 
recovery of debts in, 715. 
chattel mortgages regulated by statute in 

655 - 

number of witnesses to wills necessary in, 
786. 

mechanics’ liens, abstract of law of, 766. 

Guarantor, who is, 136. 

who pays principal’s debt, may demand 
from the creditor the securities he holds, 
137 - 

not bound, unless he has knowledge of 
the acceptance of his guaranty, 138. 
discharged, if principal’s liability is 
changed without guarantor’s consent, 
138. 

discharged, if the liability is extended by 
law, 138, 139. 

not always discharged by creditors giving 
debtor some accommodation or indul¬ 
gence, 139. 

should have reasonable notice of princi¬ 
pal’s failure, 140. 

of a note or bill, is not entitled to as 
strict notice as indorser is, 190. 

Guaranty, incidents of, 136-139. 
not generally negotiable, 136. 


Guaranty may be enforced, when original 
debt cannot be, 137. 
contract of, construed strictly, 137. 
unless by sealed instrument, must be sup¬ 
ported by a consideration, 137. 
not binding unless accepted, 138. 
specific, is not revocable, 139. 
if by an official, he is not bound personally, 
140. 

margin, what is, 141. 
oral prevented by law, 143. 
effect of changing membership in a firm 
on, 139. 

Guardians, law of, powers and duties of, 794. 

II. 

Holder, what he may do with a bill or note, 
179. 

of negotiable paper, rights and duties of, 
179. 

of bill, it is prudent for him to present the 
bill for acceptance without delay, 181. 
ill-health on part of, may excuse delay in 
presentment, 181. 

may refuse a qualified acceptance, 196. 
may cancel the acceptance, 196. 
is not obliged to receive acceptance for 
honor, 197. 

Holidays, in all the States, abstract of, 201. 

Homestead, law of, 704. 

Hotel-keepers, rights and duties of^ 276- 
278. 

have a lien on goods of guests for board, 
276. 

must receive every guest, 277. 
liability of for loss of guests’ property, 277. 

Husband, bound to support his wife while she 
lives with him, or if he sends her away 
without good cause, 59. 
a man is bound to support as his wife one 
whom he lives with,and represents as his 
wife, 59. 

may indorse a note or bill given to the wife 
before marriage, 195. 

I. 

Idaho, law as to rights of married women in, 

44 - 

days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 288. 
number of witnesses and acknowledgment 
required to deeds of land executed in, 
539 - 



INDEX. 


Idaho, usury laws of, 309. 

abstract of laws relating to collection and 
recovery of debts in, 717. 
chattel mortgages regulated by statute in, 
656. 

number of witnesses to wills necessary in, 
786. 

mechanics’ liens, abstract of law of, 

767- 

Ignorance of Law, excuses no one, 68. 

Illinois, law as to rights of married women in, 

44- 

days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 288. 
usury laws of, 309. 

number of witnesses, and acknowledg¬ 
ment required to deeds of land executed 
in, 539- 

abstract of laws relating to collection and 
recovery of debts in, 718. 
chattel mortgages regulated by statute in, 
656. 

number of witnesses to wills necessary in, 
786. 

mechanics’ liens, abstract of law of, 767. 

Indiana, law as to rights of married women 
in, 45. 

days of grace allowed, and legal holidays 
in, 202. 

statute of limitations in, 288. 
usury laws of, 309. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 

539- 

abstract of laws relating to collection and 
recovery of debts in, 719. 
chattel mortgages regulated by statute in, 
656. 

number of witnesses to wills necessary in, 
786. 

mechanics’ liens, abstract of law of, 767. 

Indorsee, of bill of exchange, 163. 

Indorsement, is what, 191. 

by law merchant, bills and notes payable 
to order are rightfully transferred only 
by, 192. 

in full, or in blank, 192. 
as to special, 193. 

joint payees who are not partners must 
join in, 193. 

the signatures of all previous indorsers 
are admitted by each, 193. 


843 

Indorsement may be restored if struck out 
by mistake, 194. 

may be made on the paper before the 
note or bill be drawn, 195. 
in blank, or in full, what they are, 171. 

Indorser, each admits by his indorsement 
the genuineness of each previous, 193. 
may make a bill payable to himself alone 
by special indorsement, 192. 
of bill of exchange, 163. 
rights and duties of, 191, 192. 

Infants, or minors, chap, iii, 30. 
who are, 30. 

when persons cease to be, 30. 
promise of, if not for necessaries, voidable 
by the infant, 30. 

promise of, for necessaries, not voidable 
by him, 32. 

promise of, may be confirmed, without 
words, 31. 

liable for frauds of any kind; therefore 
liable if he obtains goods or money by 
representing himself of full age, 32,33. 
ratifies his promise to pay by keeping the 
thing for which he promised to pay, 33. 
necessaries, what are, 32. 
if one avoids a contract because made in 
infancy, he can take no benefit from it, 

33- 

liable for torts, or wrong doing, 32. 

Inn-keepers, rights and duties of, 276. 

Iowa, law as to rights of married women in, 

45- 

days of grace allowed, and legal holidays 
in, 203. 

statute of limitations in, 289. 
usury laws of, 309. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 

539- 

abstract of laws relating to collection and 
recovery of debts in, 720. 
chattel mortgages regulated by statute in, 
656. 

number of witnesses to wills necessary in^ 
786. 

mechanics’ liens, abstract of law of, 767. 

Insanity, of principal or agent, revokes au¬ 
thority, 220. 

Instruments, irregular and ambiguous, 172. 

Insurable Interest, and how discharged, 
372 . 

Insurance, policy of, 370. 





844 


INDEX. 


Insurance, marine, how effected, 370. 
how affected by date of policy, 370. 
proposals lor, 370. 
constructive, 370. 
who may effect, 370. 
how it is construed, 371. 
sustained by compliance with registry 
laws, how, 377. 
simultaneous, 378. 
effect of prior, 377. 
on freight, 377. 
double, 378. 
against piracy, 387. 
against robbery, 387. 
against theft, 387. 
terminates when, 396. 
purpose and principle of the law of, 403. 
effect of, in case of partial loss, 403. 
contract for, when complete, 407. 
application, how obtained, 409. 
on what conditions made, 409. 
must be actual authority to make, 416. 
double, not allowed, 417. 
double, how avoided by charter of com¬ 
pany, 417. 

evidence of overstatement of loss in, 426. 
fire, no rule in for deducting one-third 
new for old, 426. 

companies require sworn statement of cir- 
stances of loss, 427. 

against accident, disease, and dishonesty 
of servants, 439. 

Insured, must communicate what things, 

3 8 4 - 

must account for proceeds of sale when 
made by the master under necessity, 
399 - 

may abandon, when, 400. 
party, bound by what rules, 407. 
all become members when insured in mu¬ 
tual insurance companies, 405. 
must have an interest in the property in¬ 
sured, 414. 

when liable for assessments after loss 
under mutual policy, 426. 
must have an interest in life insurance, 434. 

Insurer, how bound by the contract, 370. 
discharged by concealment or misrepre¬ 
sentation, 383. 
liable for what risks, 387. 
when liable for collision, 389. 
how far answerable for perils of the sea, 
388. 


Insurer, held for losses by fire, 389. 
liable for theft after shipwreck, 389. 
liable for misconduct of the crew, when, 
39 °- 

when liable under the general clause, 39T. 
liabilities in case of prohibited or contra¬ 
band trade, 391. 

liabilities in case of capture, arrest, or de¬ 
tention, 390. 

how affected by detention, 390. 
how affected by deviation, 392. 
by payment for loss, acquire the insured’s 
claim for contribution, etc., 403. 
when discharged by alterations, 413. 
must know whom they insure, 416. 
should be informed of what facts, 420. 
risk incurred by, 421. 
when not chargeable, 421. 
whether held for loss occasioned by negli¬ 
gence of the insured or his servants, 422. 
liable for buildings blown up to check 
fires, 421. 

when liable for property destroyed by 
lightning, 421. 

never held to pay more than sum insured, 

, 422. 

Insurers, against fire, not held to pay for 
loss of profits, 425. 

pay whole amount lost, when covered by 
policy, 425. 

have a right to rebuild premises when de¬ 
stroyed, 425. 

Intention, in construction of policy, 408. 

Interest, is what, 300. 

may be demanded, on what grounds, 300. 

is allowed by law, how, 300. 

not generally recoverable, when, 301. 

laws regulating, 301. 

when usurious, 301. 

banks receive more than legal, 305. 

compound, incidents of, 307, 308. 

compound, is not strictly usurious, 307. 

method of computing, 308. 

insured’s claim founded on, 375. 

insurable, 374. 

insurable, how discharged, 375. 
of the insured, 414. 

of mortgagor and mortgagee, as to insur¬ 
ing mortgaged property, 414. 
who have an insurable interest, 414, 415. 
exception as to the rule of any one al¬ 
lowed to insure property as his own in 
which he has a legal interest, 415. 



INDEX. 


845 


Interest of the insured in life insurance, 434. 

Interpretation of contracts, the, 76. 

J. 

Joint-Tenancy, and Joint-Tenants, law- 
terms ; when two or more persons own 
anything jointly, as joint-tenants , if one 
dies, the survivor or survivors take the 
share or interest of the deceased person, 
243 - 

Judgment, confession of, 198. 

Judgments, abstract of the laws of all the 
States respecting, 705. 

Jurisdiction, over salvage cases, 345. 

K. 

Kansas, law as to rights of married women 
in, 46. 

days of grace allowed, and legal holidays 
in, 203. 

statute of limitations in, 289. 

usury laws of, 309. 

number of witnesses, and acknowledgment 
required to deeds of land executed in, 
540 - 

abstract of laws relating to collection and 
recovery of debts in, 722. 

chattel mortgages regulated by statute in, 
657 - 

number of witnesses to wills necessary in, 
786. 

mechanics’ liens, abstract of law of, 767. 

Kentucky, law as to rights of married wo¬ 
men in, 46. 

days of grace allowed, and legal holidays 
in, 203. 

statute of limitations in, 289. 

usury laws of, 309. 

number of witnesses, and acknowledgment 
required to deeds of land executed in, 
540. 

abstract of laws relating to collection and 
recovery of debts in, 723. 

chattel mortgages regulated by statute in, 
657 - 

number of witnesses to wills necessary in, 
786. 

mechanics’ liens, abstract of law of, 768. 

Lu 

Lands can be transferred by deed only, 440. 

Law-Merchant, what is meant by it, 28. 


Law-Terms, some explanation of, 29. 

Law op - Place, 175. 

what is meant by, 312. 
as influencing contracts, 313. 
general principles of, 312, 313. 
of a State binds all persons and things 
within the limits of the State, 312, 313. 
has no force beyond the limits of the 
State, 313. 

of foreign States, have, by comity, a qual¬ 
ified influence, 313. 

of contract, governs the effect of the con¬ 
tract in regard to personal property, 313. 
of real property, governs the construc¬ 
tion of the contract, 313. 

Law, of shipping, how considered, 318. 
of freight, 328. 

of foreign country is presumed to be the 
same as in the place of suit, in absence 
of testimony, 176. 

Laws, regulating pilotage, 353. 

regulating interest and usury, 301. 

Lay-Days, are what, 337. 

Lease, definition of contract of, 604. 
what passes to tenant under, 604. 
duties and obligations of landlord under, 
604. 

rights and duties of tenant under, 605- 
608. 

privilege of underletting by tenant under, 
606. 

tenant when entitled to crops sown dur¬ 
ing the, 607. 

rights of tenant after expiration of, 607. 
what fixtures may be removed at expira¬ 
tion of, 608. 

abstract of the laws concerning, 609. 

Lender may charge extra price for risk in¬ 
curred, 305. 

on bottomry bond has no right to freight, 
333 - 

Liability of an agent, 215. 

of carrier for baggage of passengers, 271. 
of carrier may be modified by notice, 269. 
of carrier, to third persons, for injury 
done them by carrier or servants, 273. 
of insurers, not affected by risk of the 
market, 404. 

none attaches to the insurers for a loss 
occurring by natural or other causes 
not insured against, before a loss in¬ 
sured against happens, 405. 
of master for discharging seamen, 353. 



INDEX ; 


846 

Letter, contract by, 71. 

“ “ completed when letter 

of acceptance mailed, 71. 

Libel, when presented, 343. 

Liberty Policies, 393. 

Lien, means the right of the seller to retain 
the property till some claim he has is 
satisfied, 118. 

is lost by the seller, if the goods are deliv¬ 
ered, 118. 

of bottomry bond, depends not on posses¬ 
sion, 327. 

ship has, on goods for freight, 330. 
of seamen, on ship and freight for wages, 

35 1 - 

of material men, for supplies to ships, 354. 
of carrier, on goods, 266. 
of mechanics and material men, law of, 
with forms and directions, 761. 

Life Insurance, purpose and method of, 
43 °- 

how effected, 430. 

rules of contracts applicable to, 430. 
premium for, how paid, 431. 

Life-Policies, assignable at law, 434. 

Limited Partnerships, requisites of, 244. 

Limitations, statute of, 278. 

statute of, construction of, 279. 
statute of, new promise under, 280. 
statute of, part payment under, 281. 
statute of, when period of limitation be¬ 
gins under, 283. 

statute of, statutory exceptions under, 
282. 

statute of, does not affect collateral secu¬ 
rity, 284. 

of owner’s liability for master’s misdeeds, 
350 - 

abstract of statutes of, in all the States, 
284. 

Loss, how divided for average and contribu¬ 
tion, 341. 

and abandonment, 396. 
no total, by abandonment, unless the 
injury exceeds fifty per cent., 397. 
by jettison, salvage, etc., included in esti¬ 
mate of the, 398. 

after abandonment, must be made up by 
owner, 401. 

insurers entitled to possession after pay¬ 
ment for total, 401. 

of several insured shipments, there may 
be total loss of one, partial of another, 
402. 


Loss, when partial, 403. 

rule for averaging, by allowing one-third 
for new, 403. 

third part of, what deducted from, 404. 
what would be evidence of overstatement 
of, 423. 

Louisiana, law as to rights of married wo¬ 
men in, 47. 

days of grace allowed, and legal holidays 
in, 203. 

statute of limitations in, 290. 
usury laws of, 309. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
540 - 

abstract of laws relating to collection and 
recovery of debts in, 725. 
chattel mortgages regulated by statute in, 
657 - 

number of witnesses to wills necessary in, 
786. 

mechanics’ liens, abstract of law of, 768. 

M. 

Maker, of promissory note, 166. 

rights and duties of, of negotiable paper, 
179. 

of a bill, is bound to pay the same at 
maturity, 179. 

Mail, putting a letter in, effect of as to con- 
tract, 71. 

Maine, law as to rights of married women in, 
48. 

days of grace allowed, and legal holidays 
in, 203. 

statute of limitations in, 290. 
number of witnesses and acknowledgment 
required to deeds of land executed in, 
540 - 

usury laws of, 309. 

abstract of laws relating to collection and 
recovery of debts in, 726. 
chattel mortgages regulated by statute in, 
657 - 

number of witnesses to wills necessary in, 

787 - 

mechanics’ liens, abstract of law of, 768. 

Marine Insurance. See Insurance, 369. 

Maryland, law as to rights of married 
women in, 48. 

days of grace allowed, and legal holidays 
in, 203. 

statute of limitations in, 290. 
usury laws of, 310. 



INDEX. 


Maryland, number of witnesses and ac¬ 
knowledgment required to deeds of 
land in, 540. 

abstract of laws relating to collection and 
recovery of debts in, 727. 
chattel mortgages regulated by statute in, 
657 - 

number of witnesses to wills necessary in, 

737 - 

mechanics’ liens, abstract of law of, 768. 

Married Women (chap, v), 37. 

rights of the husband at common law, as 

to, 37. 

all the property, real or personal, 38, 39. 
common law as to, not just or right, and 
changed by statute in nearly all our 
States, 39. 

law of, as it stands in the statutes of the 
several States, Abstract of, 40. 
wife may always be agent of her husband, 
59 - 

the frequent necessity of putting their 
property under trust, and how it can be 
done, 60. 

Massachusetts, law as to rights of married 
women in, 49. 

days of grace allowed, and legal holidays 
in, 203. 

statute of limitations in, 290. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
540 - 

abstract of laws relating to collection and 
recovery of debts in, 728. 
chattel mortgages regulated by statute in, 
658. 

number of witnesses to wills necessary in, 

787 - 

mechanics’ liens, abstract of law of, 769. 

Master of Ship, should sign bill of lading, 

3 2 9 - 

and officers, not salvors, 344. 
holding goods for contribution, 344. 
powers and duties of, 346. 
power to sell the ship, 346. 
his liability for discharging seamen, 353. 
duties of repairing ship, 346. 

Material-Men, lien of, 354. See Liens 
of Mechanics and Material-Men. 

Mechanics, liens of, 761. 

Michigan, law as to rights of married women 
in, 49. 


847 

Michigan, days of grace allowed, and legal 
holidays in, 204.^ 
statute of limitations in, 291. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
540 - 

abstract of laws relating to collection and 
recovery of debts in, 729. 

Michigan, chattel mortgages regulated by 
statute in, 658. 

number of witnesses to wills necessary in, 

787 - 

mechanics’ liens, abstract of law of, 769. 

Minnesota, law as to rights of married 
women in, 50. 

days of grace allowed, and legal holidays 
in, 204. 

statute of limitations in, 291. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
540. 

abstract of laws relating to collection and 
recovery of debts in, 731. 
chattel mortgages regulated by statute in, 
658. 

number of witnesses to wills necessary in, 

787 - 

mechanics’ liens, abstract of law of, 769. 

Misrepresentation and Concealment^ 

383- 

Mississippi, law as to rights of married 
women in, 50. 

days of grace allowed, and legal holidays 
in, 204. 

statute of limitations in, 292. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
540 - 

abstract of laws relating to collection and 
recovery of debts in, 732. 
number of witnesses to wills necessary in, 
787 - 

chattel mortgages regulated by statute in, 

659 - 

mechanics’ liens, abstract of law of, 770. 

Missouri, law as to rights of married women 
in, 50. 

days of grace allowed, and legal holidays 
in, 204. 

statute of limitations in, 292. 



INDEX. 


Missouri, usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 

54 °* 

abstract of laws relating to collection and 
recovery of debts in, 733. 
chattel mortgages regulated by statute in, 
659 - 

number of witnesses to wills necessary in, 

787 - 

mechanics’ liens, abstract of law of, 770. 

Mistakes of fact may be corrected by the 
courts, but mistakes of law will not be, 
68 . 

Montana, law as to rights of married women 
in, 51. 

days of grace allowed, and legal holidays 
in, 204. 

statute of limitations in, 292. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
540 - 

abstract of laws relating to collection and 
recovery of debts in, 735. 
chattel mortgages regulated by statute in, 
659 - 

number of witnesses to wills necessary in, 

787 - 

mechanics’ liens, abstract of law of, 770. 

Mortgage of Land, or real estate, 542. 
law of, and rules concerning, 543. 
of the equity of redemption, 543. 
of foreclosure, 544. 

of the mortgagor’s right to possession, 

545 - 

Mortgage, of vessel, 357. 
purpose of, 542. 
how expressed, 543. 
containing power of sale, 544. 

Mortgage of Personal Property, not 
so formal as for land, 646. 
mortgagor may retain possession if mort¬ 
gage be recorded, 646. 
equity of redemption shorter than in 
land, 646. 

cannot be made of property to be after¬ 
wards acquired, 647. 

duties and liabilities of pledgee under, 

647 - 

difference between mortgagee and pledgee 
in, 647. 

pledgee under, cannot sell the pledge be¬ 
fore the debt is due, 647. 


Mortgage of Personal Property, un¬ 
der, pledgee may sell the pledge when the 
debt is due, and after notice given, 648. 

Mortgagee of ship, in possession, liable as 
owner, 325. 

of ship, not in possession, no right to 
freight, 333. 

insurable interest in property, 414. 
has what title to land mortgaged, 543. 

Mortgagor, insurable interest of in prop¬ 
erty, 414. 

right of, in regard to mortgaged land, 

543 - 

duty of, in regard to redemption, 544. 

Mutual Insurance Companies, amount 
insured in, 407. 

N. 

Nebraska, law as to rights of married women 
in, 51. 

days of grace allowed, and legal holidays 
in, 204. 

statute of limitations in, 293. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
540 - 

abstract of laws relating to collection and 
recovery of debts in, 736. 
chattel mortgages regulated by statute in 
659 - 

number of witnesses to wills necessary in, 
788. 

mechanics’ liens, abstract of laws of, 770. 

Negotiable Paper, what is meant by, 161. 
rules of law on subject of, are technical 
and exact, 161. 
what is essential to, 168. 
difference between what is, and what is 
not, 168. 

time of payment of, must be certain, 168. 
must be payable in money, 168. 
may be written in pen or pencil, on paper 
or any proper substitute, and in any 
language, 169. 
as to form of, 169. 

omission of certain words may be sup¬ 
plied, 169. 

contingency apparent on the face of, pre¬ 
vents negotiability, 169. 
as to whether certain notes are, 169. 
exception to common law rule in case of^ 
176, 177. 

of transfer after dishonor of, 180. 



INDEX. 


Negotiable. Paper, rights and duties of 
holder of, 179. 

rights and duties of maker of, 179. 
payable at a time certain, is entitled to 
days of grace, 184. 

in general, all parties to, entitled to no¬ 
tice, are discharged for want of it, 190. 
bill or note ceases to be, when paid, 195. 

Neutrality, warranty of, 380. 

Nevada, law as to rights of married women 
in, 51. 

days of grace allowed, and legal holidays 
in, 204. 

statute of limitations in, 293. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 738. 
chattel mortgages regulated by statute in, 
660. 

number of witnesses to wills necessary in, 
788. 

mechanics’ liens, abstract of law of, 771. 

New Hampshire, law as to rights of mar¬ 
ried women in, 52. 

days of grace allowed, and legal holidays 
in, 204. 

statute of limitations in, 293. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 739. 
chattel mortgages regulated by statute in, 
660. 

number of witnesses to wills necessary in, 
788. 

mechanics’ liens, abstract of law of, 771. 

New Jersey, law as to rights of married 
women in, 52. 

days of grace allowed, and legal holidays 
in, 205. 

statute of limitations in, 293. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 739. 
chattel mortgages regulated by statute in, 
660. 


849 

New Jersey, number of witnesses to wills 
necessary in, 788. 

mechanics’ liens, abstract of law of, 771. 

New Mexico, law as to rights of married 
women in, 52. 

days of grace allowed, and legal holidays 
in, 205. 

statute of limitations in, 294. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 740. 
chattel mortgages regulated by statute in, 
660. 

number of witnesses to wills necessary in, 
788. 

mechanics’ liens, abstract of law of, 771. 

New Promise, by one who had made the 
original promise when an infant, 31. 
a mere acknowledgment not enough, 31. 
may be conditional, 31. 
if conditional, condition must be per¬ 
formed, 31. 

New York, law as to rights of married wo¬ 
men in, 53. 

days of grace allowed, and legal holidays 
in, 205. 

statute of limitations in, 294. 
usury laws of, 310. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 741. 
chattel mortgages regulated by statute in, 

660. 

number of witnesses to wills necessary in, 
78S. 

mechanics’ liens, abstract of law of, 772. 

North Carolina, law as to rights of mar¬ 
ried women in, 53. 

days of grace allowed, and legal holidays 
in, 205. 

statute of limitations in, 294. 
usury laws of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 743. 
chattel mortgages regulated by statute in, 

661. 


54 



INDEX. 


850 

North Carolina, number of witnesses to 
wills necessary in, 788. i 
mechanics’ liens, abstract of law of, 772. 

Note, promissory, differs from bill of ex¬ 
change, 163. 

indorsed in blank always transferable by 
delivery, 171. 

when incomplete and invalid, 171. 
to a fictitious payee with same name in¬ 
dorsed by maker, will be held the mak¬ 
er’s own note, 171. 

payable to different persons, in the alter¬ 
native, not good, 172. 
payable at any place should be demanded 
there, 185. 

when not presented for payment, all par¬ 
ties but acceptor or maker are dis¬ 
charged, 185. 

sale of, when amounting to usury, 306, 307. 

Notice, of protest, must be given, even to 
one who has knowledge, 187. 
no particular form of necessary, 187. 
if letters be put in the office, any miscar¬ 
riage does not affect the party giving 
notice, 187. 

should be sent by public post, 187. 
should be sent to place of business or res¬ 
idence of party notified, 188. 
of non payment, should be sent in reason, 
able time, 188. 

right to, may be waived by agreement, 
190. 

death or severe illness is excuse for delay 
of, 191. 

Want of, may be cured by express promise 
to pay, 191. 

Notice of Non-Payment, there is no pre¬ 
sumption of, 189. 

each party receiving, has a day before he 
is to send it forward, 1S8. 
should be given only by a party liable on 
the instrument, 189. 

must be given to every antecedent party 
who is to be held, 189. 
may be given to a party personally or his 
agent, 189. 

may be given to either of partners jointly 
liable; if not partners, then to each 
one, 190. 

one transferring, without indorsement by 
delivery, is not generally entitled to 
190. 

to agent is notice to the principal, 189. 


Notice of Non-payment, common carrier 
has a right to modify his liability by, 
269. 

of carrier’s liability, may be indirectly 
brought home to a person, 270. 
general, will be enough to give to agents 
of insurer in case of loss, 425. 

o. 

Obligee, one to whom the obligor is bound 
in a bond, 105. 

Obligor, one bound by a bond, 105. 

held to pay so much only as will indem¬ 
nify the obligee, 106. 

Officers of Ship, not salvors, 344. 

Ohio, law as to rights of married women in, 

53 - 

days of grace allowed, and legal holidays 
in, 205. 

statute of limitations in, 295. 
usury laws of, 311. 

number of witnesses and acknowledg¬ 
ment required to deeds of land executed 
in, 541. 

abstract of laws relating to collection and 
recovery of debts in, 744. 
chattel mortgages regulated by statute in, 
661. 

number of witnesses to wills necessary in, 

789 - 

mechanics’ liens, abstract of law of, 772. 

Oregon, law as to rights of married women 
in, 54. 

days of grace allowed, and legal holidays 
in, 205. 

statute of limitations in, 295. 
usury law of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 745. 
chattel mortgages regulated by statute in, 
661. 

number of witnesses to wills necessary in, 

789 - 

mechanics’ liens, abstract of law of, 772. 

Owner, may recover goods from an honest 
purchaser who has bought from one 
with defective title, 119. 
cannot recover from one who bought in 
good faith from one who bought fraud¬ 
ulently from the owner, 119. 



INDEX . 


Owners, when bound by master’s acts, 346, 
347 - 

when liable for injuries done by master, 

346 . 

of sacrificed property acquire claim for 
contribution, 403. 

P. 

Partners, liability and authority begin when, 
229. 

may share the profits or losses as they 
choose, 229. 

persons may be liable as, to third persons 
who are not as between themselves, 230. 
who is a secret, dormant, or nominal, 230. 
factors, brokers, etc., are not partners 
with those employing them, 231. 
may dissolve the partnership at pleasure 
when working no disadvantage to the 
others, 231. 

dissolution occurs by death of a general 
or special, 232. 

dissolution also when one partner’s whole 
interest is sold on execution, 233. 
dormant or secret partner is not liable for 
debts contracted after his retirement, 
233 * 

should give notice of retirement, 233. 
each one is agent for all, 234. 
one cannot bind the firm by a guaranty, a 
letter of credit, or submission to arbi¬ 
tration without authority, 235. 
may bind the firm by instrument under 
seal, 235. 

must act as such, to bind the firm, 236. 
reception of a new, makes a new firm, 237. 
borrowing money for partnership pur 
poses creates a partnership debt, 237. 
obtaining credit for partnership purposes 
makes the firm liable, 237. 
partner in general cannot sue another for 
claim growung out of partnership inter¬ 
ests, 239. 

either may sue for balance on adjustment 
of accounts, 239. 

may sue his copartner for money ad¬ 
vanced before partnership formed, 239. 
w'ho pays more than his share of a debt 
must charge the firm, 240. 
the firm may sue for goods sold in the 
name of one, 240. 

surviving, are tenants in common only 
with representatives of deceased, 243. 


85I 

Partnership, is not credited by single joint 
transaction, 229. 

all persons competent to do business on 
their own account may enter into, 229. 
when created, 228. 

no especial form is necessary for, 229. 
may be formed how, 229. 
usually is but one business name to a, 
231 - 

principal test of, is participation in profits, 
231. 

may hold real as well as personal estate, 
233 - 

can have no seal at law, 236. 
money lent one partner for partnership 
purposes, makes a debt of the, 237. 
firm is liable only to one who deals with 
a partner in good faith, 238. 
may be liable for injury caused by crimi¬ 
nal acts of a partner, 238. 
funds of. must first be applied to partner¬ 
ship debts, 241. 

creditors cannot attach private property 
till private creditors are satisfied, 241. 
property goes, in case of death of one 
partner, to the others, only for purpose 
of settlement, 243. 
limited, requisites of, 244. 
effect of dissolution of, 243. 
dissolution of, held to avoid policy of in¬ 
surance, 424. 

Part Owners of Ships, rights and obliga¬ 
tions of, 323. 

of ships, not necessarily partners, 323. 
may sell his share of ship, 323. 
all are liable for repairs to ship, 323. 
ship’s husband, is commonly one of, 324. 

Passage-Money, rules of, analogous to these 
of freight, 334. 

Passengers, may be salvor, 344. 

Patents, the law of, 664. 

what may be patented, 664. 
who is entitled to a patent, 664. 
what will prevent the granting of a patent, 
665. 

mode of proceeding to obtain a patent, 
665. 

applications; what, and how to be made, 

665. 

specifications; what, and how to be made, 

666 . 

oath, or affirmation ; what, and how to be 
made, 668. 



INDEX. 


852 

Pate nts, foreigners; what they must do, 669. 
drawings ; how they must be made and 
sent to the patent-office, 669. 
model; how it must be made and sent to 
the patent-office, 670. 
examination, when, and how made in the 
patent-office, 670. 

appeals to the examiners-in-chief, 672. 
appeals to the Supreme Court of the Dis¬ 
trict of Columbia, 673. 
rules regulating the above appeals, 673. 
interferences, 674. 
re-issues, and surrender, 675 
disclaimers, 678. 
extensions, 678. 

designs, how they may be patented, 678. 
foreign patents, do not prevent taking 
one here, 681. 
caveats, 681. 

assignments and grants of patent-rights, 
683. 

fees payable to the patent-office; what, 
and how payable, 687. 
testimony,how taken and transmitted, 688. 

Patent Law of the Dominion of Canada, 

688 . 

Payee, of bill of exchange, 167. 
of promissory note, 166. 
must be designated, 170. 

Payment, how may be made, 147. 

negotiable bill or note, is not an absolute, 
148. 

appropriation of, among several debts, 
149 - 

may be appropriated at time of, by payor, 
149 - 

impossibility of presenting a bill for, ex¬ 
cuse some delay, 183. 
time of, in negotiable paper, must not de¬ 
pend on a contingency, 16S. 
of negotiable paper, must be in money, 
168. 

of bills, notes, etc., is to be demanded 
promptly, though need not oe done in¬ 
stantly, 184. 

demand of, is sufficient, if made at usual 
residence or place of business of payer, 
183. 

what constitutes demand, and refusal of 
183. 

bankruptcy or insolvency no excuse for 
not demanding, 183. 

bills on demand should be presented in a 
reasonable time for, 184. 


Payment, every demand for should be made 
at the proper place, 185. 
part, takes debt from under statute of 
limitation, 281. 

debtor may appropriate, to any one of 
several debts, 281. 

Penalty, of a bond, 105. 

for not signing shipping articles, 350. 
for discharging seamen without their con¬ 
sent, 353. 

Pennsylvania, law as to rights of married 
women in, 54. 

days of grace allowed, and legal holidays 
in, 206. 

statute of limitations in, 295. 
usury laws of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 746. 
chattel mortgages, regulated by statute 
in, 661. 

number of witnesses to wills necessary in, 
789 - 

mechanics’ liens, abstract of law of, 773. 

Perils, of the sea, 388. 
by fire, 389. 

Pilots, responsibilities of, 353. 

Place, what is meant by law of, 312. 
general principles of law of, 312. 
law of, influencing contracts, 314. 

Policy, of insurance, 370. 

subsequent additions to, 371. 
of insurance, how affected by assignment, 
372 . 

of insurance, assignment of, 372. 
of insurance, when altered, 371. 
when open or valued, 372. 
wager, 372. 

value insured in an open, 373. 

memorandum in, 379. 

express warranty in, 379. 

embraces what perils, 387. 

providing against barratry by clause in,390. 

liberty, 393. 

as to total loss, in the provisions of the, 

398 . 

valuation in the, generally determines the 
estimate of the loss, 398. 
of fire insurance, what necessary to exe¬ 
cution of, 407. 

when delayed, and company not bound, 
407. 



INDEX. 


853 


Policy, subsequent ratification by an agent, 
what effect, 408. 

of fire insurance, how constructed as to 
description, 408. 

intention must be expressed in, 408. 
words “stock in trade” include what in, 
408. 

memorandum on back of, 409. 
mistake in, 409. 

when some parts written, some printed, 
409 - 

con taining scale of premiums, 410. 
when void, for false statement of appli¬ 
cant, 410. 

how affected by greater hazard for a time, 
411. 

when made by consignee will be construed 
to cover his interest only, when no in¬ 
terest is expressed, 415. 
by commission merchant, in his own 
name, when it may cover goods of vari¬ 
ous consignors, 415. 

provisions against double insurance, 416. 
when separate statements are part of, 
417 - 

indorsement made upon, may take effect 
as part of, though made before executed, 
418. 

when statement not construed as part of, 
418. 

difference between marine and fire, 419. 
when avoided by misrepresentations or 
concealments, 419. 

always avoided by warranty broken, 419. 
parties may make a valued, 422. 
is personal contract between the parties, 

4 2 3 - 

against fire, contains provision against 
assignment, 424. 

production of, certificate of loss, is condi¬ 
tion precedent to payment, 424. 
difference of adjustment between marine 
and fire, 425, 

assignment of, should be made on it, 429. 
assent of insurers had best be obtained 
to assignment of, 429. 
time of death in case of life insurance has 
important effect on payment of the, 
432 - 

restrictions on the life insured in the, 432. 
when avoided by death by suicide, 433. 
takes effect from date, 394. 
never attaches in case of unreasonable 
delay in sailing, 394. 


Policy, how affected by the words “ at,” 
“ to,” and “at and from,” 394. 
on goods attaches when, 394. 

Port, what is meant by, in policy, 394. 

Power, to sell, implies power to warrant, 
etc., 209. 

of ship-master, 346-350. 
of attorney, custom-house, 366. 

Premium, when due and how paid, 385. 
when may be returned, 385. 
how paid in case of life insurance, 43T. 
in case of life insurance when paid, 431. 
extra required in what cases, 433. 

Presentment, for acceptance, 180. 

should be made during business hours, 
181. 

should be made to drawee or his agent, 
181. 

for demand of payment, 182. 
for demand of payment, same for notes 
and bills, 182. 

for demand of payment, universal rule of 
law merchant in regard to, 184. 

Presumption of Law, affecting contracts 
how, 801. 

Principal is bound by acts of the agent, 
207, 208. 

may confer authority on agent how, 209. 
has power of revocation in general, 213. 
when undisclosed, may show that the 
nominal party was actually his agent, 
216. 

is responsible for injuries resulting from 
a fraudulent representation of the 
agent, 216. 

is bound by payment of money to an 
agent only when done in regular course 
of business, 216. 

not responsible for criminal acts, unless 
he expressly commanded them, 217. 
who accepts the benefit of an act done by 
his agent discharges him from respon¬ 
sibility therefor, 217. 

general rule is, he may revoke his agent’s 
authority at pleasure, 220. 
cannot revoke authority given to factor 
after advances made, 222. 

Profits, how valued and insured, 373. 

Promise, of promissory note, 168. 

must be supported by a consideration, 97. 
to pay another’s debt when original, when 
collateral, 143, 144. 

in negotiable paper, must be absolute, 

16S. 



INDEX. 


854 

Promise, barred under statute of limitations, 
279. 

new, sufficient to take case from statute 
of limitations, 280. 

new, not implied from mere acknowledg¬ 
ment, 280. 

implied by part payment, 281. 

Promise, can never be enforced by one who 
knew the performance thereof impossi¬ 
ble, 101. 

cannot be enforced when supported only 
by a valueless consideration, though it 
was at first apparently good, 102. 
when severable, what may or may not be 
enforced, 102. 

for work to be done, when broken without 
good cause by promisor, he cannot 
recover, 102. 

Promisor, of promissory note, 166. 

Promissory Note, differs from bill of ex¬ 
change, 166. 
is what, 167. 

not negotiable when, 168. 
on demand is considered as intended as a 
continuing security, 180. 

Property, legal meaning of word, 117. 

of partnership is bound to pay partner¬ 
ship debts, 241. 
insured, description of, 3S6. 
insured must contribute to general aver¬ 
age when, 402. 

claim for contribution acquired by owners 
of sacrificed, 403. 

under insurance, effect of alterations on, 
412. 

Proposals, of insurance, 370. 

Protest, and notice, 186-191. 

demand and, must be made according to 
law of the place where the bill is pay¬ 
able, 186. 

loss of bill no excuse for not protesting, 
186. 

should be made on day of demand and 
refusal, 186. 

Notice of, various incidents of, 186-190. 

Provision by statute in behalf of seamen, 

35 °- 

of seamen provided by owner, 351. 

Public Property, retained for contribution, 
341 - 

Purpose and use of this book (chap, i), 23. 


R. 

Real Property, may be held by partner¬ 
ship, 233. 

oral bargain for, of no effect, 450. 

Reasonable Time, allowed by law for an 
acceptance of an offer; what this time 
is, 70. 

Receipts, definition of, 150. 

open to explanation or contradiction, 151. 
in deed, may be shown not for value, 446. 

Recording of deeds, essentials of, 444. 

Recovery of Debts, attachment, trustee 
process, garnishee process, homestead, 
and exemption from execution, 703. 

Recovery of Debts, abstract of the laws 
of the States respecting. 705. 

Registration of Ships, 318-320. 

Release, differs from receipt, 151. 

in the nature of a contract, requires con¬ 
sideration, 151. 

Repairs, of ship, 340. 

value of old material should be deducted 
in case of, 404. 

how affecting insurer and insured, 413. 

Representation, and warranty, 417. 
differs from a warranty, 418. 
how affecting the policy, 417. 
if in writing or in parol, 419. 
in case of life insurance, 434-438. 

Retract, when and how one may retract his 
offer, 71. 

Revocation is in general within the power 
of the principal, 213. 
of submission may be made by either 
party, 254. 

of submission, the other party has dam¬ 
ages for, 254. 

of submission, notice must be given of, 255. 
of submission, bankruptcy does not amount 
to, 255. 

of an offer, when, how, by whom, 71. 

Revocation of Wills, 780. 

Rhode Island, law as to rights of married 
women in, 54. 

days of grace allowed, and legal holidays 
in, 206. 

statute of limitations in, 296. 
usury laws of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541. 





INDEX. 


Rhode Island, abstract of laws relating to 
collection and recovery of debts in, 747. 
chattel mortgages regulated by statute in, 
661. 

number of witnesses to wills necessary in, 

739 - 

mechanics’ liens, abstract of law of, 773. 

Rights, of action growing out of agency, 215. 
of the firm against third parties, 240. 
of creditors in respect to partnership 
funds, 241. 

of seamen in sickness, 351. 
of seamen to be brought home, 332. 
and duties, of maker of negotiable paper, 
179. 

and duties of holder of negotiable pa¬ 
per, 179. 

and duties of indorser, 191, 192. 
and duties of acceptors, 195. 

Risk, common sea, 340. 

parties may agree as to, 388. 

when terminated, 395, 396. 

rules concerning “hazardous,” 410, 411. 

Rules, in respect to passage-money, analogous 
to those of freight, 334. 
regulating salvage, 344. 
governing collision, 349. 
for steam-vessels when meeting others, 
349 - 

of pilots, 353. 

concerning “hazardous” risks, 410,411. 

s. 

Sacrifice, in average, how justified, 341. 

Sale, is to be immediately followed by pay¬ 
ment and delivery, unless otherwise 
agreed upon, 117. 

is made when the agreement is made, 117. 
what constitutes a, 116. 
distinction between agreement and, 116. 
every actual, is an executed contract, 
though payment may remain to be 
made, 116. 

executory contract for, is not a present, 
11 6 . 

of goods, is exchange thereof for money, 

11 6 . 

when bargain does, or does not become a, 

117. 

is made when the agreement is made, 117. 
is not complete so long as something re¬ 
mains to be done to the goods by the 
seller, 118-120. 


355 

Sale is not necessarily complete on the com¬ 
pletion of some time agreed on, or hap¬ 
pening of some event, 121. 
can be done, of chattels or goods not in 
existence, 121. 

is none, but for a price that is certain or 
capable of being made so, 121. 
when once effected, the buyer has a right 
to possession, on payment, 121. 
when avoided by mistake, or defect in 
subject-matter, 124. 

when many things bought at one, right of 
buyer as to refusing a part without all, 
125. 

buyer may have right of re-delivery by 
terms of bargain, 126. 
with warranty, 128. 

of one’s business, when good, when void, 

* 33 - 

of notes, when amounting to usury, 306. 
of ships, how regulated, 321. 
when made by master under necessity, 
proceeds must be accounted for by in¬ 
sured, 399. 

Salvage, what constitutes, 342, 343. 
how enforced, 343. 
proceedings for, 343. 
what proportion of value for, 344, 345. 
how distributed among salvors, 345. 

Salvors, who are, 343. 
passenger may be, 344. 

Seal, of deed, is what, 441. 

notarial, evidence of dishonor of foreign 
bill, 186. 

Seamen, rights of, in sickness, 351. 
discharge of, without consent, 352. 
if discharged without their consent, have 
a right to be brought home, 352. 
desertion of, how punished, 353. 
punishment of, 353. 

Seaworthiness, warranty of, 381, 382. 
standard for, 382. 

Seller, has a lien on goods for payment, 
118. 

may resell goods on notice given the buyer, 
if the buyer does not pay in a reasonable 
time, 118. 

cannot sell and give good title, if he has 
only right of possession, 119. 
liability of, as to keeping goods, 122, 
obligations of, as to delivery, 122, 123. 
may annul a sale he was induced to make 
by fraud, 126. 



INDEX. 


856 

Seller not necessarily bound by receipt in 
deed, 446. 

Sheriff, as to levy and sale by, of partner¬ 
ship interests, 232. 

Ships, are personal property, 318. 
registration of, 318, 320. 
transfer of, should be followed by posses¬ 
sion, 322. 

what is meant by, in passing property by 
sale of, 322. 

have a lien on goods for the freight, 330. 
when repaired, contribution for, 337. 
transfer of property in, 321, 322. 
conveyances of, recorded, 321. 
mortgagee of, in possession, liable as 
owner, 325. 

employment of, by owner, 327-334. 

Shipper, cannot abandon goods for freight so 
long as they are in specie, 333. 

Shipping, articles of, 350. 

Ship-Owner, may let his ship to others, 334. 
must pay for goods lost by his fault, or 
the fault of his ship, 334. 

Ship’s-Husband, is commonly part-owner, 
324 - 

powers of, 324. 

Signature, to agreement, when it may be in 
any part of the paper, 146. 
to negotiable paper, how it may be writ¬ 
ten, 169. 

Single Women, how their property may be 
put safely under trust, and secured to 
them, in view of then- marriage, 60. 

South Carolina, law as to rights of mar¬ 
ried women in, 55. 

days of grace allowed and legal holidays 
in, 206. 

statute of limitations in, 296. 
usury laws of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 748. 
chattel mortgages regulated by statute in, 
662. 

number of witnesses to wills necessary in, 

789 - 

mechanics’ liens, abstract of law of, 773. 

Specifications, should accompany building 
contracts, 92. 

Statute of Limitations. See Limita¬ 
tions. 


Statutes, as distinguished from common 
law, 27. 

provisions respecting seamen, 350. 
of frauds, purpose, and provisions, 142- 
147. 

Stay Laws, abstract of in all the States, 705. 

Stoppage in Transitu, 134. 

exists only in actual insolvency, 134. 
must be effected by seller, 135. 
hindered by possession of buyer, actual or 
constructive, 135. 

barred by bona fide sale by buyer, 135. 
a seller exercising right of, does not re¬ 
scind the sale, but holds the goods as 
property of the buyer, 136. 

Submission, to arbitrators, may be revoked 
by either party before award made, 
254 - 

other party has damages for revocation 
of, 254. 

Subscription Papers, law as to them, 100. 

Survey of Vessels, when ordered, 351. 

T. 

Tenancy by the curtesy, a law-term, ex¬ 
plained, 37. 

Tender, what constitutes a good, 147. 

lawful, and payment in court, is a good 
defence to action for debt, 148. 

Tennessee, law as to rights of married 
women in, 55. 

days of grace allowed and legal holidays 
in, 206. 

statute of limitations in, 296. 
usury laws of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
541 - 

abstract of laws relating to collection and 
recovery of debts in, 749. 
chattel mortgages regulated by statute in, 
662. 

number of witnesses to wills necessary in, 

789 - 

mechanics’ liens, abstract of law of, 773. 

Termini, of voyage and risk, 394-396. 
must be distinctly stated, 394. 

Texas, law as to rights of married women 
in, 55. 

days of grace allowed, and legal holidays 
in, 206. 

statute of limitations in, 297. 
usury laws of, 311. 



INDEX. 


Texas, number of witnesses and acknowledg¬ 
ment required in deeds of land executed 
in, 541. 

abstract of laws relating to collection and 
recovery of debts in, 751. 
chattel mortgages regulated by statute in, 
662. 

number of witnesses to wills necessary in, 

78 9. 

mechanics’ liens, abstract of law of, 774. 

Things in Action, a law-term, explained, 38. 

Things in Possession, a law-term, ex¬ 
plained, 38. 

Title, does not pass by sale to a fraudulent 
party, 127. 

Torts, this word in law means wrongs, and 
includes all wrong-doing, 32. 
are what, 301. 

Trade, contraband, 391. 
prohibited, 391. 

Trade-marks, protected; and sundry provi¬ 
sions of the statute respecting them, 
and how they should be described and 
recorded, given in full, 689. 

Trial, for salvage, how had, 345. 

Trustee Process. See Recovery of 
Debts. 

Trustees, a law-term, explained, 60. 
cannot buy trust property, 219. 
may insure against fire, 415. 

U. 

Usage, when held unreasonable, 76. 

of fire insurance companies, when admit¬ 
ted, 407. 

Usury, what is meant by, 300. 
law in regard to, 301. 

Usury, what is necessary to constitute, 301, 
302. 

contract for, wholly void, 302. 

when sale of notes amounts to, 306, 307. 

abstract of the law of in all the States, 308. 

Utah, law as to rights of married women in, 

56 - 

days of grace allowed, and legal holidays 
in, 206. 

statute of limitations in, 297. 
usury law of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
542. 

abstract of laws relating to collection and 
recovery of debts in, 752. 


857 

Utah, chattel mortgages regulated by statute 
in, 662. 

number of witnesses to wills necessary in, 

789 - 

mechanics’ liens, abstract of law of, 774. 

V. 

Value Received, effect of these words in 
negotiable paper, 178. 

Value, of insured goods, how determined, 374. 

Valuation, how applied to insured property, 

372 , 373 - 

how understood in fire policies, 422. 
mutual companies require a valuation ex¬ 
pressed, 422. 

determines wha-t the insurers must pay in 
case of total loss, 423. 

Vermont, law as to rights of married women 
in, 56. 

days of grace allowed, and legal holidays 
in, 206. 

statute of limitations in, 297. 
usury laws of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
542. 

abstract of laws relating to collection and 
recovery of debts in, 753. 
chattel mortgages regulated by statute in, 
662. 

number of witnesses to wills necessary in, 
789. 

’ mechanics’ liens, abstract of law of, 774. 

Vessels, in danger of collision, duties of, 349. 

Virginia, law as to rights of married women 
in, 56. 

days of grace allowed, and legal holidays 
in, 206. 

statute of limitations in, 298. 
usury laws of, 311. 

number of witnesses and acknowledgment 
to deeds of land executed in, 542. 
abstract of laws relating to collection and 
recovery of debts in, 754. 
chattel mortgages regulated by statute in, 
662. 

number of witnesses to wills necessary in, 

790 - 

mechanics’ liens, abstract of law of, 774. 

Voyage, in respect to charter-party, 336. 
what is the proper course for, 392. 
unnecessary protraction of, is a deviation, 
393 - 



INDEX. 


858 

Voyage may be changed for purpose of sa\- 
ing life, 393. 

new voyage substituted for one agreed on 
is a deviation, 393. 

policy never attaches on an entirely new, 

394 - 

ship may visit several ports by permission, 
on the, 393. 

where and when terminated, 394. 

w. 

Wages, of seamen, how regulated, 351. 
who may insure, 376. 
of mariners, not insurable, 376. 

Waiver, of fraud, when action is brought to 
enforce the contract, 128. 

Warranty, general, particular, limited, ex¬ 
press, or implied, 128. 
mere declaration of opinion is not, 128. 
breach of, does not always authorize buyen 
to return, 130. 

provisions sold are always-held to be sold 
with, 131. 

what is held to constitute, 128-131. 
seller of goods in possession is understood 
as selling with warranty of title, 130. 
thing sold for special purpose is sold with 
implied, 130. 

held not to apply where an ascertained 
article is bought, 130. 
bill of sale, describing articles sold amounts 
to, 131. 

express, in policy, 379. 

breach of, 380. 

subjects of express, 380. 

of sailing, 3S0. 

of neutrality, 380. 

implied, 381. 

of seaworthiness, 3S1. 

and representation, 417. 

part of contract of insurance, 417. 

may be of the present or of the future, 418. 

continuing, 418. 

in case of life-insurance, 435. 

deed, clauses in, 447. 

in quit-claim deed, 447. 

effect of, on subsequent grantees, 448. 

Washington Territory, law as to rights 
of married women in, 57. 
days of grace allowed, and legal holidays 
in, 207. 

statute of limitations in, 298. 
usury laws of, 311. 


Washington Territory, number of wit¬ 
nesses and acknowledgment required 
to deeds of land executed in, 542. 

abstract of laws relating to collection and 
recovery of debts in, 755. 

chattel mortgages, regulated by statute in, 
663. 

number of witnesses to wills necessary in, 
790.- 

mechanics’ liens, abstract of law of, 775. 

West Virginia, law as to rights of married 
women in, 57. 

days of grace allowed, and legal holidays, 
in, 207. 

statute of limitations in, 298. 

usury laws of, 311. 

number of witnesses and acknowledgment, 
required to deeds of land executed in, 
542. 

abstract of laws relating to collection and 
recovery of debts in, 756. 

chattel mortgages regulated by statute in, 
663. 

number of witnesses to wills necessary in, 
790 - 

mechanics’ liens, abstract of law of, 775. 

Wife, may always be an agent of her husband, 

59 - 

is his agent, with authority to make pur¬ 
chases on his account, for proper do¬ 
mestic purposes, 59. 

loses this-authority if she needlessly leaves 
his house, 59. 

if she leaves his house because of his cru¬ 
elty, she carries with her his authority 
to make purchases or contracts for her 
proper support, 39. 

if she carries on trade as a single woman 
when is the husband liable, 59. 

when the assent of, is necessary to pass 
real estate, 444. 

effect of, joining in deed with husband, 
449, 450. 

Wills, the law of, with forms and directions 
for making and executing, 776. 

Wisconsin, law as to rights of married 
women in, 57. 

days of grace allowed, and legal holidays 
in, 207. 

statute of limitations in, 299. 

usury laws of, 311. 

number of witnesses and acknowledgment 
required to deeds of land executed in, 
542. 





INDEX ; 


Wisconsin, abstract of laws relating to 
collection and recovery of debts in, 
757 - 

chattel mortgages regulated by statute 
in, 663. 

number of witnesses to wills necessary in, 
790 - 

mechanics’ liens, abstract of law of, 775. 

Witnesses, to deed, law and practice of, 
442 , 443 - 

to deeds, number required by statute in 
all the States, 538. 

Wyoming, law as to rights of married women 
in, 58. 


859 

Wyoming, days of grace allowed, and legal 
holidays in, 207. 

statute of limitations in, 299. 

usury laws of, 311. 

number of witnesses and acknowledg¬ 
ment required to deeds of land executed 
in, 542. 

abstract of laws relating to collection and 
recovery of debts in, 759. 

chattel mortgages regulated by statute in, 
663. 

number of witnesses to wills necessary 
in, 790. 

mechanics’ liens, abstract of law of, 775. 




INDEX TO FORMS 


Agreement and Contract. 

General agreement, sufficient for many 
purposes, 77. 

General agreement, as used in the West¬ 
ern States, 77. 

General contract for mechanics’ work, 78. 

Agreement for purchase and sale of land, 
in use in the Middle States, 79. 

Agreement for sale of land, in use in the 
Western States, 79. 

Agreement for warranty deed, used in the 
Western States, 82. 

Contract to convey real estate, in use in 
the Middle States, 82. 

Agreement for tire purchase of an estate, 
in use in New England, 84. 

Agreement for the sale of an estate by 
private contract, 87. 

Agreement to be signed by an auctioneer, 
after a sale by auction, 87. 

Agreement to be signed by the purchaser, 
after a sale by auction, 88. 

Agreement to make an assignment of a 
lease, 88. 

Agreement for making a quantity of man¬ 
ufactured articles, 88. 

Agreement between a trader and a book¬ 
keeper, 89. 

Agreement for damages in laying out or 
altering road, 90. 

Agreement between a person who is retir¬ 
ing from the active part of a business, 
and another who is to conduct the 
same for their mutual benefit, 90. 

Brief building-contract, 92. 

Full and minute building-contract, 93. 
Apprentices. 

A general indenture of apprenticeship as 
sometimes used in New England, 35. 

Shorter indenture of apprenticeship, 36. 


Arbitration. 

Simple agreement to refer, 256. 

Arbitration bond. One or more arbitra¬ 
tors, 256. 

Award of arbitrators, 257. 

Assignments. 

Brief form of an assignment to be in¬ 
dorsed on a note, or any similar prom¬ 
ise or agreement, 113. 

General assignment, with power of attor¬ 
ney, 113. 

Assignment of a bond, 114. 

Assignment of a bond, with power of at¬ 
torney, and a covenant, 114. 

Assignment of a judgment, in the form of 
an indenture, 115. 

Assignment of mortgage, short, 590. 

Assignment of mortgage with power of 
attorney, 590. 

Assignment of mortgage by a corpora¬ 
tion, 591. 

Assignment of mortgage in use in Michi¬ 
gan, 584. 

Assignment of wages, with power of at¬ 
torney, 115. 

Attorney, Powers of, and Agency. 

Power of attorney, 223. 

Power of substitution, 224. 

Power of attorney, in a shorter form, 224. 

Full power of attorney to demand and re¬ 
cover debts, 225. 

Power of attorney to sell and deliver 
chattels, 226. 

Power of attorney to sell lands, 502. 

Power of attorney given by seller to buyer, 

226. 

Power of attorney to sell shares of stock, 
with appointment by attorney of sub¬ 
stitute, 226. 

Power of attorney to subscribe for stock, 

227. 

(860) 




INDEX TO FORMS. 


861 


Attorney, Powers of, and Agency. 

Proxy or power of attorney to vote, 227. 

Proxy revoking all previous proxies, 227. 

Proxy with affidavit of ownership, in use 
in New York, 227. 

Power to receive dividend, 228. 

Bonds. 

Simple bond, without condition, 106. 

Bond for payment of money, with a condi¬ 
tion to that effect, with power of attor¬ 
ney to confess judgment annexed, 106. 

Bond to be secured by mortgage, 546. 

Bond for conveyance of a parcel of land, 
107. 

Bond for a deed of land, with acknowledg¬ 
ment before notary public, 108, 501. 

Bond in another form, for conveyance of 
land, with acknowledgment, 109. 

Bond to corporation for payment of 
money due for contribution to capital 
stock, with power of attorney to confess 
judgment, no. 

Bond with warrant in use in Pennsylva¬ 
nia, 565. 

Bond (mortgage) in use in New York, 
588. 

Carriage of Goods and Passengers. 

Steam packet company’s receipt, 274. 

Express company’s receipt, 274. 

Contract for Sale of Lands, 501. 

Copyright. 

Agreement between author and publisher; 
short form, 700. 

Agreement between author and publisher; 
fuller form, 701. 

Assignment of a copyright, 702. 

Deeds Conveying Land. 

Deed poll of warranty, in common use in 
New England, 452. 

Deed of gift by indenture, without any 
warranty whatever, 453. 

Deed of bargain and sale, without any 
warranty, 454. 

Quitclaim deed, without any warranty, 45 5. 

Deed poll of release and conveyance; 
short form, 456. 

Deed with special warranty against the 
grantor only, 457. 

Quitclaim deed (long form), homestead 
waiver, 458. 

Deed, with covenant against grantor, 
without release of homestead or dower, 

459 - 


Deeds Conveying Land. 

Separate relinquishment of homestead 
and dower in land sold under execu- 
tion, 461. 

Full warranty deed, by indenture, without 
release of homestead or dower, 462. 

Warranty deed (short form), with release 
of homestead and dower, 464. 

Warranty deed, with covenant against 
nuisances, without release of homestead 
or dower, 465. 

Warranty deed, brief, in use in Arkansas, 
468. 

Warranty deed, brief, in use in California, 

487 - 

Warranty deed, brief, in use in Florida, 
468. 

Warranty deed, brief, made under the 
statute in use in Illinois, 484. 

Warranty deed in use in Kentucky, 467. 

Warranty deed in use in Louisiana, 481. 

Warranty deed in use in Maryland, 486. 

Warranty deed, brief, in use in Minnesota, 
480. 

Warranty deed, brief, in use in Mississippi, 
472. 

Warranty deed in use in Missouri, 472. 

Warranty deed, brief, in use in Ohio, 478. 

Warranty deed in use in New Jersey, 476. 

Warranty deed in use in New York, 499. 

Warranty deed, brief, in use in North 
Carolina, 470. 

Warranty deed, brief, in use in Pennsyl¬ 
vania, 475. 

Warranty deed in use in South Carolina, 
486. 

Warranty deed made under the statute of 
West Virginia, 485. 

Warranty deed, brief, in use in Wiscon¬ 
sin, 474. 

Deed of grant with warranty against 
claimants through grantor, in use in 
Delaware, 495. 

Deed of grant and quitclaim of property 
and mining right, in use in California 
and the mining States, 483. 

Quitclaim deed, brief, in use in Alabama, 
498. 

Quitclaim deed, brief, in use in Delaware, 

497 - 

Quitclaim deed in use in Indiana, 496. 

Quitclaim deed in use in Nebraska, 497. 

Deed in use in Province of Ontario, 530. 





862 


INDEX TO FORMS. 


Deeds Conveying Land. 

Deed with mortgage back to secure price, 
in use in the Province of Quebec, 531. 

Deed with covenants and release of dower 
in use in the Province of Ontario, 533. 

Deed of grant and quitclaim, 534. 

Deed of grant in use in Prince Edward 
Island, 536. 

Bond for a deed, 501. 

Contract for sale of land, with penal obli¬ 
gation, 501. 

Power of attorney to sell lands, 502. 

Trust deed for the benefit of a wife, or 
some other person, 504. 

Trust deed to secure payment of a note, 
without release of homestead or dower, 

5 ° 5 - 

Deed of trust to secure a debt (fuller 
form), and with release of dower, 507. 

Guaranty. 

Guaranty to be indorsed on note, 140. 

Guaranty of a note on separate paper, 140. 

Guaranty in another way, 140. 

Letter of guaranty, 141. 

Guaranty with collaterals, authorizing sale, 
141 - 

Guaranty with collaterals, promising addi¬ 
tional security or authorizing sale, 141. 

Infants. 

Promise in writing, 34. 

Insurance, Marine. 

Abandonment, 399. 

Insurance, Fire. 

Immediate notice of loss, 426. 

Notice, with certificate of magistrate, 427. 

Assignment of a policy to be indorsed 
thereon, 428. 

Transfer and assignment of policy, 429. 

Leases of Houses and Lands. 

Short form of lease, 610. 

Fuller form, with a provision for abate¬ 
ment of rent, 610. 

Short form of lease, in use in the Western 
States, 612. 

Lease of city property, in use in Chicago, 
613 - 

Lease with provisions for taxes and assess¬ 
ments, 615. 

Lease, with covenants about water-rates 
and injury by fire, in use in New York, 
617. 

Lease by grant, in use in the Western 
States, 619. 


Leases of Houses and Lands. 

Lease by certificate, with surety, 620. 

Lease of city property, in use in St. Louis, 
621. 

What is called a country lease, in use in 
the Western States, 622. 

A ground lease, 624. 

Assignment of lease, and ground rent, 627. 

Lease containing chattel mortgage cove¬ 
nants, to secure rent, 629. 

A building lease, 632. 

A mining lease, 633. 

Lease of land supposed to contain oil, 
salt, or other minerals, 634. 

Assignment of a lease, 636. 

Landlord’s notice to quit for non-payment 
of rent; short form, 636. 

Landlord’s notice to quit for non-payment 
of rent; another form, 637. 

Landlord’s notice to pay rent due, or quit, 
637 - 

Landlord’s notice to leave at end of term, 
637 - 

Landlord’s notice to determine a tenancy 
at will, 638. 

Receipt for rent, in use in New York, 638. 

Lease in use in Province o£ Quebec, 638. 

Lease in use in Province of Quebec, known 
as private lease, 640. 

Lease, house, in use in Ontario, 643. 

Lease of land in general use, 644. 

Lease of a farm, 832. 

Liens of Mechanics and Material-men. 

Notice under mechanic’s lien, 762. 

Bill of particulars of mechanic’s claim, 763. 

Release and discharge of mechanic’s lien, 

763. 

Release and discharge of a mechanic’s 
lien; another form, 764. 

Married Women. 

Indenture to put in trust the property of 
a married woman, 60. 

Another form of indenture in trust, for 
property of unmarried women, 64. 

Mortgages of Land. 

Promissory note, to be secured by mort¬ 
gage, 546. 

Bond to be secured by mortgage, 546. 

Mortgage, without power of sale and with¬ 
out warranty, but with release of home¬ 
stead and dower, 547. 

Mortgage, with power of sale, to secure a 
bond, without release of dower, 548. 





INDEX TO FORMS. 


863 




Mortgages of Land. J 

Mortgage to secure a debt, with power of 
sale ; short form, 550. 

Mortgage to secure a debt (fuller form), 
with power of sale, 551. 

Deed poll of mortgage, with power to 
sell, and insurance clause, and release 
of homestead and dower, 552. 

Mortgage by indenture, with power of 
sale, and interest and insurance clause, 
to secure a bond, 554. 

Mortgage to executors, with power of sale, 
557 - 

Mortgage of a lease, 559. 

Mortgagee’s deed, under a power of sale, 
561. 

Mortgage deed without release of dower, 
etc., in use in Wisconsin, 574. 

Mortgage deed to secure a bond, in use in 
South Carolina, 569. 

Mortgage to secure a bond with warrant, 
in use in Pennsylvania, 562. 

Mortgage deed in use in New York, 585. 

Mortgage, with power of sale, in use in 
Missouri, 573. 

Mortgage deed in use in Maryland, 567. 

Mortgage deed in use in Louisiana, 577. 

Mortgage deed to secure a promissory 
note, in use in Kansas, 572. 

Mortgage deed, with release of dower, etc., 
to secure payment of premises sold, in 
use in Iowa, 576. 

Mortgage deed (short) in use in Indiana, 
574 - 

Mortgage deed with power of sale, in use 
in Georgia, 571. 

Mortgage deed in use in Province of 
Quebec, 597. 

Mortgage deed for general use in the 
Dominion of Canada, 600. 

Trust deed to secure a debt, payable in 
gold coin, in use in California, 489. 

Trust deed to secure payment of a prom¬ 
issory note, in use in Colorado, 492. 

Trust deed by way of mortgage, in use in 
Virginia and West Virginia, 488. 

Mortgage, satisfaction of, in use in New 
York, 589. 

Mortgage, satisfaction of, in use in New 
Jersey, 581. 

Mortgage, satisfaction of, in use in Min¬ 
nesota, 583. 

Mortgage, assignment of, in use in Mich¬ 
igan, 5S4. 


Mortgages of Land. 

Mortgage, release of, in use in Kansas, 
582. 

Deed of trust, release of, in use in Color¬ 
ado, 581. 

Deed of trust, release of, in use in Vir¬ 
ginia and West Virginia, 583. 

Assignment of mortgage, short form, 590. 

Assignment of mortgage with power of 
attorney, 590. 

Assignment of mortgage by a corpora¬ 
tion, 591. 

Discharge of mortgage, short form, 592. 

Release and quitclaim of mortgage, as 
used in the Western States, 593. 

Discharge of mortgage, as used in the 
Middle States, 593. 

Discharge and satisfaction of mortgage 
by a corporation, 594. 

Release of a part of the mortgaged prem¬ 
ises, 594. 

Deed extending a mortgage, 596. 

Mortgages of Goods and Chattels. 

Mortgage of personal property, 649. 

Mortgage of personal property, with 

warranty, 649. 

Mortgage of personal property, with 

power L sale, 651. 

Mortgage of personal property, with 

power of sale; another form, 652. 

Notes of Hand and Bills of Exchange. 

Common form of a bill of exchange, 162. 

Common forms of a promissory note, 163. 

Form of a note secured by mortgage, as 
used in Illinois, 164. 

Promissory note to be secured by mort¬ 
gage, 546. 

Form of a note given for a chattel sold, 
with a condition preserving the owner¬ 
ship of the seller, 170. 

Judgment note, with waiver, 198. 

Judgment note, with fuller waiver and 
power of attorney, 198. 

Partnership. 

Articles of copartnership between two 
tradesmen, 245. 

Short form of articles of copartnership, 
247 - 

Certificate of a limited partnership, with 
acknowledgment and oath, 249. 

Patents. 

Form of petition, 665. 

Specification to accompany a petition, 667. 

Form of oath, 668. 




864 


INDEX TO FORMS. 


Patents. 

Appeal to the examiner-in-chief, 673. 
Petition for re-issue, 677. 

Oath to be appended to application for 
re-i 3 sue, 677. 

Disclaimer by an assignee, 678. 
Application for patents of designs, 680. 
Specifications for designs, 680. 

Form of caveat, 682. 

Assignment of the entire interest in let- 
ters-patent before obtaining the same, 
and to be recorded preparatory thereto, 
684. 

Assignment of an undivided interest, 684. 
Grant of a territorial right in a patent, 685. 
F orms of license, 686. 

Protest. 

Notarial, and notice of, 200. 

Receipts and Releases. 

Receipt for money, 150. 

Another form of receipt for money, 150. 
Receipt for papers or other articles, 150. 
General release, 151. 

Mutual general release by indenture, 152. 
Release from creditors to a debtor, under 
a composition, 152. 

Release of all legacies, 152. 

Release of a bond, it being lost, 153. 
Release of a judgment, 154. 

Release of a condition, 155. 

Release of a covenant contained in an in¬ 
denture of lease, 155. 

Release in extinguishment of a power, 156. 
Release from a lessor to a lessee (upon 
his surrendering his lease) from the 
covenants therein, 156. 


Receipts and Releases. 

General release of dower, 157. 

Release of dower to the heir, 157. 
Release of dower in consideration of an 
annuity given by will, 158. 

Release of dower when the husband of 
the widow joins in the deed, 158. 
Release of a trust, 159. 

Release of right to lands, 160. 

Release between two traders in settling 
accounts, 160. 

Release of deeds of trust in Colorado, 5S1. 
Release of mortgage in Kansas, 582. 
Release of trust deed in Virginia, 583. 
Sales. 

Bill of sale of personal property, 132. 

Bill of sale of personal property, with a 
condition to make it a mortgage with 
power of sale, 132. 

Shipping. 

Bill of sale of vessel, 355. 

Mortgage of a vessel, 357. 

Charter party, 359. 

Bill of lading, 360. 

Shipping articles in common use, 361. 
Bottomry bond, 364. 

Oath or affirmation of consignee or agent, 

365 - 

Custom-house power of attorney, 366. 
Maritime protest, 367. 

Steamboat warrant, as used in the West¬ 
ern States, 369. 

Wills. 

A will, 781. 

Copy of a fuller form of, 782. 


t :V 


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